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Author Archive

Making a Burlesque of the Constitution: Military Trials of Civilians in the War Against Terrorism

Anthony F. Renzo* 

James Thompson was born in Denver, Colorado in 1966. At the age of five he moved with his family to Seattle, Washington. As a young adult, Thompson changed his name to Earnest James Ujaama and converted to Islam. He was recognized for his work with gangs and troubled youth by the City of Seattle, which awarded him the key to the City. Washington State lawmakers declared June 10, 1994 “James Ujaama Day.” In addition to his community service, Ujaama authored three books on youth entrepreneurship. On July 22, 2002, Ujaama was arrested by federal agents at his aunt’s house in Denver. He was imprisoned without judicial processfor several months in Virginia and was later charged with various offenses, including aiding terrorist organizations.

Like Ujaama, Ali al-Marri was arrested in the United States on December 12, 2001 as part of the investigation into the September 11 attacks. Al-Marri, a Qatari national lawfully residing in Peoria, Illinois, was indicted and charged as a civilian in the Federal District Court for the Southern District of New York with offenses related to aiding terrorist organizations. The case was transferred back to Peoria and scheduled for trial beginning on July 21, 2003. On June 18, al-Marri moved to suppress evidence allegedly obtained in violation of the Fourth Amendment, and an evidentiary hearing was set for July 2. On June 23, the government presented the court with an order signed by President Bush designating al-Marri as an enemy combatant and dismissing the indictment.10 Al-Marri was then transferred to military custody, where he has been detained for over three years awaiting trial by military commission.

The Bush Administration has claimed constitutional authority to subject persons detained in the United States, including U.S. citizens, such as Ujaama, and legal-alien residents of the United States, such as al-Marri, to trial by military commission if the executive branch decides that the detainee is an “unlawful enemy combatant” who has violated the law of war. On June 29, 2006, in Hamdan v. Rumsfeld, the Supreme Court held that the Authorization for Use of Military Force (AUMF), passed by Congress in the wake of the September 11 terrorist attacks, impliedly authorized the President to create military commissions for enemy combatants “in appropriate circumstances” and subject to the limitations of Articles 21 and 36 of the Uniform Code of Military Justice (UCMJ). Although the Court in Hamdan declined to make a specific ruling as to whether the President has the inherent Article II authority in the absence of action by Congress to convene law-of-war military commissions, the majority nonetheless stated that “authority [to establish military commissions,] if it exists, can derive only from the powers granted jointly to the President and Congress in time of war.” The Hamdan majority recognized that the issue of military-commission trials raises “important questions about the balance of powers in our constitutional structure,” and Justice Kennedy in his concurring opinion cited “the risk that offenses will be defined, prosecuted, and adjudicated by [the Executive] without independent review.”

In addition to addressing the balance of power between Congress and the President, the Court in Hamdan reaffirmed that Congress’s power to create military tribunals, including military commissions, is subject to constitutional limitations. The baseline constitutional limitation that governs this issue was drawn 140 years ago in the Supreme Court’s landmark decision Ex parte Milligan. Milligan and its progeny established that the Constitution’s jury-trial guarantees prohibit the military trial of a detainee apprehended within the jurisdictional reach of operational Article III civilian courts unless, during wartime or other national emergency, the government convinces those same civilian courts that the detainee is not a civilian but an enemy combatant. To show enemy-combatant status, the government must prove that the prisoner is a member of, or acting under the command of, the enemy’s armed forces. Hence, if the detainee is a civilian, that detainee-civilian is entitled to a trial by jury in a civilian court
in the absence of a complete breakdown of the institutions of civil government rendering the civilian courts unable to function. On the other hand, a detainee found to be an enemy combatant is subject to military jurisdiction, including the trial of any alleged criminal offense by military tribunal. This Article will demonstrate that a military commission convened in areas where Article III courts are open and functioning has no jurisdiction to try a detainee unless the civilian courts have determined that the detainee is properly classified as an enemy combatant and not as a civilian.

Part I of this Article provides a short overview of the well-settled constitutional principles that govern military trials of civilians. Part II traces the origins of the Constitution’s jury-trial guarantees. Part III provides a brief history of the use of military tribunals in America since its founding. Part IV explains why Congress does not have the power under the Constitution to authorize military tribunals to try civilians during war or other national emergency. Part V explores the law-of-war distinction between the legal categories of “enemy combatant” and “civilian.” Finally, Part VI demonstrates that the government’s use of military commissions in the war against terrorism is subject to judicial review to ensure that Article III and Sixth-Amendment rights of trial by jury have not been infringed.

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*This article was originally published in Vol. 31 of the Vermont Law Review and can be found at 31 VT. L. REV. 447 (2006). The citations have been slightly edited to bring them in line with current citation standards and to update URLs that have been taken offline in the intervening years. The sources used were those available to the author at the time of publication.


How the Rest was Won: Creating a Universally Beneficial Legal Regime for Space-Based Natural Resource Utilization

Ian Hedges, J.D. 2015 Vermont Law School

History has demonstrated the United States’ ability to assert rapid control over vast areas of land in a sweeping manner. In 1803, Thomas Jefferson acquired the Louisiana Purchase, doubling the size of the country.Over a century later, Congress passed the Outer Continental Shelf Lands Act of 1953, asserting control over 1.76 billion acres of submerged land. And on September 10, 2014, a subcommittee in the House of Representatives sat down to discuss what could be the beginning of a new era of American property acquisition. The American Space Technology for Exploring Resource Opportunities in Deep Space Act (Asteroids Act) strives to “facilitate the commercial exploration and utilization of asteroid resources to meet national needs,” as well as “promote the right of United States commercial entities to explore and utilize resources from asteroids in outer space, in accordance with the existing international obligations of the United States, free from harmful interference, and to transfer or sell such resources.” More recently, the Federal Aviation Administration (FAA) has mirrored some of Congress’s intentions. The agency plans to “leverage the FAA’s existing launch licensing authority to encourage private sector investments in space systems by ensuring that commercial activities can be conducted on a non-interference basis.” In doing so, the FAA acknowledged “the private sector’s need to protect its assets and personnel on the moon or on other celestial bodies.”

Still in its preliminary stages, space law’s scope has yet to be defined. With private space industry on the rise, the need to define space law’s scope is increasingly apparent. Companies like Planetary Resources, with high profile investors including James Cameron and Richard Branson, are already envisioning a “new paradigm for resource discovery and utilization that will bring the Solar System into humanity’s sphere of influence.” Yet this new paradigm—largely influenced by highly developed countries and affluent individuals—tends to focus on the desires of a select few private actors within the industry. These self-interested notions run contrary to traditional principles of space law, which provide for space exploration benefitting all mankind. These competing ideals beg questions concerning property rights allocation in outer space and how to distribute acquired resources from space exploitation.

Part I of this Note will look at the issue of scarcity and its applicability to natural resources in outer space. Part II briefly discusses the types of resources available in outer space. Part III analyzes the current regime of federal and international space-related laws and how they may interact with current systems of property and resource development. In addition, this section explores how current federal public lands paradigms, and other analogous areas of the law, may cooperate with evolving space law. Lastly, Part IV provides recommendations on how space law can ultimately promote not only a deeper understanding of the cosmos, but also the knowledge of how to garner resources responsibly, benefitting humankind from the depths of a little-known frontier.

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Review of Benjamin Sovacool and Michael H. Dworkin’s Global Energy Justice: Problems, Principles, and Practices

Michael B. Gerrard 

Energy powers the world. Having enough energy is essential to maintaining even the most minimal quality of life. But extracting and using energy renders some places uninhabitable, and now threatens the ecological integrity of the planet. 

Current energy systems involve profound injustices. These injustices can arise in the ways that energy is produced—including through local and global environmental degradation, human rights abuses, corruption, and social and military conflict. Injustice can also arise in the ways that energy is or is not available—with more than a billion people having far too little for a decent existence, while hundreds of millions consume lavishly.

In Global Energy Justice: Problems, Principles, and Practices, Benjamin K. Sovacool and Michael H. Dworkin undertake an ambitious
project: understanding these injustices and proposing ways to address them. The two are professors at Vermont Law School and are both associated with its Institute for Energy and the Environment. Among their many other activities, Sovacool also holds an appointment at Aarhus University in
Denmark, and Dworkin formerly chaired the Vermont Public Service Board. Their book is well-documented and ranges across a broad array of relevant disciplines.

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Scrutinizing Strict Scrutiny

Roy G. Spece, Jr., & David Yokum 

Standards of review dominate personal liberties practice, and we must take them seriously if we heed calls to take (constitutional) lawyering seriously. Standards are poorly articulated and undertheorized. They must be properly fashioned by exploring and reconciling the logic and purpose of each of their components. We do this with strict scrutiny both to energize an important standard of review and model a proper approach. Our analysis is primarily within the context of higher education affirmative action cases because they typify the ambiguity of strict scrutiny; one such case—Fisher v. University of Texas at Austin—was set to be argued on December 9, 2015.

We derive a preferred articulation of strict scrutiny with six achievable but rights-protective requirements. Strict scrutiny is especially energized by separating its ends question about compellingness from its means question about interest advancement. Then state interests are compelling only if of a special nature. This is analogous to requiring fundamental rights to have special attributes irrespective of any intrusion. 

The preferred version of strict scrutiny is applied to Fisher, which involves a university program that considers race as one diversity factor combined with a top ten percent law. Our contrarian conclusion is that the law is unconstitutional, but that the Court should save the University program by severing it from the law. It is contrarian because most authorities—whether invoking an anti-subjugation, anti-classification, or anti-balkanization perspective—accept supposedly racially neutral top ten percent laws. We invoke a nuanced conception of anti-balkanization applicable in Fisher’s unique circumstances. Our conclusion is also based on a rich conception of academic freedom with two complementary aspects that place it at the foundation of freedom of speech. These aspects combine to protect universities from external impositions such as the Texas law, allowing them to accommodate diversity and demonstrated academic capacity.

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The Effective Enforcement of Vermont’s Consumer Lending Laws: A Needed Model for Other State

Tucker Jones 

“Predatory lending” encompasses all retail loans that impose “unfair and abusive loan terms on borrowers.”[1] Abusive loan terms can appear in loans ranging from mortgages to short-term consumer loans for several hundred dollars.[2] Regardless of the size, these loans generally have two common elements: the loans’ marketing and documentation lack transparency of cost and terms, and the issuer’s incentives typically undermine the borrower’s needs.[3] These loans generally come with high interest rates and other terms that can trap the borrower in cycles of debt.[4] Payday loans are one form of predatory lending consisting of high interest, short-term loans secured on a postdated check for the borrower’s next “payday.” There were as many as 24,000 payday loan stores nationwide in 2006–2007.[5] This number has declined since then, but payday lending is nonetheless a $46 billion industry today.[6] Although often advertised as emergency loans for unexpected expenses, most of these loans go toward daily living expenses.[7]

EPA’s Authority in Doubt: Does the Clean Air Act Give “Power” to the Clean Power Plan?

Flora Ji 

In August 2015, President Obama and the United States Environmental Protection Agency (EPA) announced the Clean Power Plan (CPP): the first-ever carbon pollution regulation for existing fossil fuel power plants. Under the CPP, the EPA sets CO2 limits and the reduction targets for existing fossil fuel-fired power plants, and states have the flexibility to adopt their own plans to achieve those targets.[1] By 2030, the EPA expects the CPP to reduce CO2 emissions from the electric sector to 32% below 2005 levels.[2] Energy-related CO2 emissions contribute to 80% of total United States greenhouse gas emissions,[3] which mainly come from the electricity sector.[4] Thus, having the country’s major source of carbon emissions under control could go a long way in combating climate change. In order to achieve these reduction standards, fossil fuel industries will be on the chopping block. To stop the EPA from moving forward, fossil fuel companies and several states have taken their disagreements to court since the CPP was first proposed. Fourteen coal states, led by West Virginia and the nation’s largest coal company, Murray Energy Corporation, filed a suit against the proposed Plan, but the court refused to review the proposed agency action before it became final.[5]

Sowing the Seeds of “Meaningful Access”: How Federally Financed Farming Programs Can Help Recent Immigrants

Laura Hartz 

In 1862, President Lincoln authorized the formation of the United States Department of Agriculture (USDA); two years later, at a time when almost one out of two Americans lived on farms, he would dub the agency “The People’s Department.”[1] Although the proportion of the United States population living on farms today has shrunk,[2] the Department’s importance continues to grow as it “provides leadership on food, agriculture, natural resources, rural development, nutrition, and related issues” for millions of Americans. [3] The People’s Department, however, does not serve all Americans equally.

Stairway to Heaven or Stairway to Government Overreach: Is Converting Private Stairways into Public Beach Access a Taking?

Logan Harrell 

Residents of the City of Solana Beach enjoy the Southern California climate while sitting atop beautiful bluffs overlooking the Pacific Ocean.[1] This tranquil location creates prime real estate for seaside cottages and condominiums valued in the millions.[2] Taking advantage of their proximity to the ocean, private landowners build stairways along the bluff face so they can gain access to the beaches below.[3]

Keeping Community Solar in the Community: Is Your Solar Garden Unreasonable?

Rikaela Greane 

Regulators, economists, and renewable energy advocates trumpet community solar as a more affordable, relatable, and accessible renewable energy source.[1] Indeed, researchers predict these snappily named “solar gardens” will be the next largest solar growth market in the United States.[2] Motivated by statute, image, or altruism, many utilities started growing community solar gardens, which allow several energy customers to share the benefits of one solar array.[3] Unfortunately, state statutes enacted to prevent utilities from unreasonably discriminating between customers in their ratepayer territory could be the weeds that strangle these silicon gardens.[4]

Pipeline Flows and Oil Sands Foes: Business as Usual or Grass-Roots Zoning for a Clean Energy Transition

Hans Eysenbach 

The United States’ energy sector is experiencing a profound clash: accelerated departure from fossil energy sources versus commercial pressure to exploit now economically recoverable unconventional oil and gas reserves. Perhaps the most notable example of this clash is the Keystone XL oil sands pipeline proposal that was recently rejected by executive order after a highly publicized six-year environmental and inter-agency review.[1] Since the early 2000s, the advent of horizontal drilling technology and hydraulic fracturing of rock structures containing oil and gas have led to unprecedented increases in access to unconventional reserves of oil (e.g., tight formation, or oil sands, and shale oil) and gas (i.e., shale gas).[2] This hydraulic fracturing technological revolution has rapidly changed the structure of the U.S. oil and gas sector in under a decade.[3] Current projections hold that, given continuity of current trends, the United States is poised to become a net energy exporter by 2035.[4] These systemic shifts have increased the strain and strategic importance of the bottlenecks for oil and gas transportation: pipelines.

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