Here is a link to Professor Steve Vladeck’s thoughts on the US v. Ali oral argument.  Here and here are our prior discussions of the argument, including our guest blogger, which Prof. Vladeck very nicely links to.  A snippet from his comments:

But the objection to military jurisdiction over civilians is not simply grounded in fairness concerns. Rather, as Justice Hugo Black put it in 1957, “[t]rial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness.” If that barrier is only displaced for civilians who accompany our forces in the field during a declared war, that’s one thing; after all, Congress hasn’t declared war since 1942. But if it could be brushed aside any time a civilian in any way supports a “contingency operation,” then one hopes that the Court of Appeals for the Armed Forces will realize what the Supreme Court has long suggested—that, regardless of how uncontroversial it might seem to court-martial someone like Ali, the first step down this particular slippery slope may well be the last.

I must say that I found the prediction that the case is going to SCOTUS a bold prediction.  We await a decision.  Any predictions on when it comes out?

One Response to “Lawfare on the US v. Ali Oral Argument”

  1. Steven M. Shepard says:

    I was glad to hear that the judges focused on the crucial point that Mr. Ali is not a U.S. Citizen. That appears to me a crucial point not much discussed in the briefs or in Professor Vladeck’s comments. It is one thing to take away a U.S. Citizen’s right to trial by a jury selected according to the Sixth Amendment’s guarantees. But it is quite another thing to say that a non-citizen may be tried in a process that, although fair and impartial, does not comply with the Sixth Amendment. If CAAF were to rule for Mr. Ali, would that mean that the Gitmo commissions are also unlawful, because they do not afford Sixth Amendment protections to the non-citizen accused?