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In the aftermath of 9/11, the Bush Administration embarked upon its self-declared ‘War on Terror’ which included the establishment of Military Commissions to try some of the detainees in Guantánamo Bay. The subject involves a critique of the Bush Administration’s approach to trials by Military Commissions and contrasts the system with prosecutions of terrorist offences in United States civilian courts both pre and post-9/11. Students in the subject will discover that there are viable and effective alternatives to trial by Military Commissions which still guarantee basic fair trial rights. The subject also considers policy approaches of the Obama Administration—particularly the massive increase in drone strikes in preference to taking physical custody of targeted personnel and transferring them to Guantánamo Bay – as well as increasingly strident Australian counter-terrorism legislation. The lecturers combine extensive practical trial experience with detailed understanding of relevant legal regimes making the subject a dynamic learning experience.
Principal topics include:
- Challenges of prosecuting terrorist offences
- Alternative trial proceedings
- United States criminal law and counter-terrorism legislation
- Terrorism trials in United States civilian courts
- United States Military Commissions: establishment, subject matter jurisdiction and trial procedures
- Trials before United States Military Commissions
- Decision to close the Commissions and options for future cases
- Capture or kill: the increasing use of drone strikes in the War on Terror
- Australian legislative approaches to counter-terrorism.
Intended learning outcomes
A student who has successfully completed this subject will:
- Understand the alternative legal frameworks for the prosecution of terrorist offences in the United States (US) and the underlying policy grounds for each of them
- Be conversant with US domestic counter-terror legislation, the relevant procedural standards in US domestic criminal trials and the leading US counter-terror cases
- Be aware of the purported legal bases for the establishment of the US Military Commissions and be able to critically evaluate the US Supreme Court’s jurisprudence in relation to the Commissions
- Comprehend the major criticisms of the US Military Commissions (both substantive legal and policy criticisms) and be in a position to argue for or against those criticisms
- Be aware of the case law of the US Military Commissions, including the proceedings against Australian David Hicks.
Last updated: 11 February 2021