The Constitutionality of Trump’s Impeachment

BY: Jack Little

Jack Little is a junior in the School of Foreign Service studying international politics, philosophy, and Spanish. He is currently a line editor for the Georgetown University Undergraduate Law Review.


On February 13, former President Trump made history by becoming the first president to be acquitted during their Senate impeachment trial after already having left office.[1] Notably, even the Republicans who voted to acquit seemingly accused him of having committed impeachable offenses. Minority Leader McConnell said, “There is no question – none – that President Trump is practically and morally responsible for provoking” the riots at the Capitol.[2] However, McConnell argued, the Senate cannot impeach a president who has already left office, and therefore “President Trump is constitutionally not eligible for conviction.”[3] These strained arguments, aimed at simultaneously appeasing Trump supporters while steering the Republican party away from Trump, do not hold up to muster.[4] Not only is there precedent for late impeachment, there are also practical considerations that clearly demonstrate the constitutionality of impeaching and convicting presidents after they have left office.

The trial of Secretary of War William Belknap in 1876 established the precedent for late impeachment. Belknap, who had been accused of corruptly receiving bribes, resigned before he could be impeached, but the House decided to impeach him nonetheless.[5] During his Senate trial, Belknap’s counsel argued, as did Trump’s, that because he was now a private citizen, he was no longer subject to impeachment; it was unconstitutional for the Senate to proceed. The Senate debated this argument and found that he was “amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached.”[6] Although he was ultimately acquitted, as only a majority and not two thirds of Senators voted to convict, this case established a precedent for acknowledging the constitutionality of late impeachment.

Precedent is an incredibly important tool for determining whether a branch of government’s actions are constitutional. Indeed, the Supreme Court has ruled that “In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.”[7] Thus, Congress, whose actions are rarely the subject of judicial review, must turn to precedent when deciding whether late impeachment is constitutional, and the only precedent for late impeachment prior to Trump’s second impeachment is that of the Belknap case.[8]

The House impeachment managers succinctly laid out the practical reason for why late impeachment must be constitutional in their “January exception” argument. According to Representative David Cicilline, if late impeachment were unconstitutional, it would allow that “our most powerful officials can commit the most terrible abuses and then resign, leave office, and suddenly claim that they are just a private citizen who can’t be held accountable at all.”[9] In other words, any impeachable offense committed by a president could go unpunished if they occurred near the end of their term or if they resigned soon after. Trump’s lawyer Bruce Castor responded that there could be no January exception because if a president did in fact commit impeachable offenses, they could simply be charged criminally after leaving office; they would not actually go unpunished.[10] Castor’s argument implies that impeachment is a criminal process, one in which all charges must be spelled out in the criminal code, but this is not the case. According to a House guide on impeachment, “Less than one-third of all the articles the House has adopted have explicitly charged the violation of a criminal statute.”[11] Since most impeachments have not referred to specific criminal offenses, there might not be any remedy to a president’s impeachable conduct other than their late impeachment if they resign or their term expires before the Senate can try them.

Castor’s argument also implies that the sole purpose of impeachment is removal from office, which ignores a significant component of impeachment: the ability to disqualify a president from future public office if they are convicted. If impeachment were solely a process of removal, why would the framers include in the Constitution the Removal and Disqualification clause?[12] This clause demonstrates an additional purpose to impeachment other than the mere removal from office. In many cases, those who are convicted in the Senate or leave office before being convicted cannot realistically win a future election and are unlikely to be appointed to a public office anyways.[13] The law does not guarantee their disqualification from future office, however, so it is important that Congress retains its constitutional ability to disqualify former presidents from office who have been convicted by the Senate, even when they leave office before their trials.

For their part, Trump’s attorneys made other arguments in his defense. First, they attacked the impeachment procedure for denying Trump due process. Attorney David Schoen criticized the House’s “snap impeachment” as too hastily conducted.[14] He also criticized “the denial of any opportunity ever to test the integrity of the evidence offered against Donald J. Trump in a proceeding seeking to bar him.”[15] Here, he criticizes the Senate impeachment trial for not allowing further scrutiny of the evidence presented against Trump, even though the leaders of both parties agreed to the trial’s rules at its outset.[16] This faulty process, he says, shows that the underlying reason for Trump’s impeachment is actually “political gain.”[17]

Second, Trump’s defense team argued his speech on January 6 was “constitutionally protected political speech.”[18] Because political speech “is the kind of activity to which the First Amendment offers its strongest protection,” Trump must be acquitted, argued Attorney Michael van der Veen.[19] Otherwise, Castor warned, “This Chamber and the Chamber across the way will change [majorities] one day, and partisan impeachments will become commonplace.”[20]

However, these two arguments should be set aside as secondary to the constitutionality argument because so many Republican Senators justified their votes to acquit with the latter argument. For example, along with Senator McConnell, the entire Senate GOP leadership team—Whip John Thune, Republican Conference Chairman John Barasso, Republican Policy Committee Chairman Roy Blunt, Vice Chair of the Republican Conference Joni Ernst, and Republican Senatorial Committee Chairman Rick Scott—relied on the constitutionality argument to justify voting not guilty.[21] The Senate Republican conference’s reliance on the constitutionality argument is not surprising, since it allowed them to avoid offending Trump’s political base and also not endorse his actions, but it clearly shows which argument they view as more important.[22]

            Given the Belknap precedent and these practical considerations, the Constitution clearly permits the impeachment of a president after he or she has left office. Rather than out of any serious concern for the Constitution, most Republican Senators unfortunately chose to hide behind it for the purposes of political expediency.


[1] Nicholas Fandos, Trump Acquitted of Inciting Insurrection, Even as Bipartisan Majority Votes ‘Guilty’, N.Y. Times (Feb. 13, 2021), https://www.nytimes.com/2021/02/13/us/politics/trump-impeachment.html.

[2] 167 Cong. Rec. S28,735 (daily ed. Feb. 13, 2021)(statement of Sen. McConnell)

[3] Id.

[4] Carl Hulse & Nicholas Fandos, McConnell, Denouncing Trump After Voting to Acquit, Says His Hands Were Tied, N.Y. Times (Feb.13, 2021), https://www.nytimes.com/2021/02/13/us/mcconnell-trump-impeachment-acquittal.html?action=click&block=associated_collection_recirc&impression_id=c25f8861-6f11-11eb-82e7-c5beddebc667&index=1&pgtype=Article&region=footer.

[5] Congressional Research Service, The Impeachment and Trial of a Former President 4 (2021).

[6] Id.

[7] U.S. v. Nixon, 418 U.S. 683, 703 (1974).

[8] Congressional Research Service, supra note 5.

[9] 167 Cong. Rec. S24,595 (daily ed. Feb. 9, 2021)(statement of Rep. Cicilline)

[10] 167 Cong. Rec. S24,601 (daily ed. Feb. 9, 2021)(statement of Counsel Castor)

[11] House Parliamentarian, Y 1.2:P 88/2, House Practice: A Guide to the Rules, Precedents and Procedures of the House 612 (2017).

[12] U.S. Const. art. I, § 3, cl. 7.

[13] Brian C. Kalt, The Constitutional Case for the Impeachability for Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Texas Review of Law & Politics 13, 126 (2001).

[14] 167 Cong. Rec. S27,669 (daily ed. Feb. 12, 2021)(statement of Counsel Schoen)

[15] Id.

[16] Brakkton Booker, Trump’s Legal Defense Team Concludes Case In Fraction Of Allotted Time, NPR (Feb. 12, 2021), https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/12/967460409/trumps-legal-defense-team-concludes-case-in-fraction-of-allotted-time.

[17] 167 Cong. Rec. S27,670 (daily ed. Feb. 12, 2021)(statement of Counsel Schoen)

[18] 167 Cong. Rec. S27,677 (daily ed. Feb. 12, 2021)(statement of Counsel van der Veen)

[19] Id.

[20] 167 Cong. Rec. S24,599 (daily ed. Feb. 19, 2021)(statement of Counsel Castor)

[21] Press Release, Senator John Thune, Thune Statement on Conclusion of Senate Impeachment Trial (Feb. 13, 2021), https://www.thune.senate.gov/public/index.cfm/press-releases?ID=879F5D24-FCCD-49F0-8E57-E7604722BC09; Press Release, Senator John Barrasso, Barrasso Statement on Impeachment Vote (Feb. 13, 2021), https://www.barrasso.senate.gov/public/index.cfm/news-releases?ID=136D20B1-C7B5-407A-B895-DCEADC562844; Press Release, Senator Roy Blunt, Blunt Statement On Vote To Acquit Former President Trump (Feb. 13, 2021), https://www.blunt.senate.gov/news/press-releases/blunt-statement-on-vote-to-acquit-former-president-trump; Press Release, Senator Joni Ernst, Ernst Statement on Conclusion of Impeachment Trial (Feb. 13, 2021), https://www.ernst.senate.gov/public/index.cfm/press-releases?ID=6640487D-7B01-4FE6-A413-5F1773F87B5B; Press Release, Senator Rick Scott, Sen. Rick Scott: It’s Time to Get Back to Work (Feb. 13, 2021), https://www.rickscott.senate.gov/sen-rick-scott-its-time-get-back-work.

[22] Hulse & Fandos, supra note 4.

U.S. Immigration Law and Domestic Violence

BY: Anya Howko-Johnson

Anya Howko-Johnson is a junior in the School of Foreign Service studying international politics, creative writing, and French. She is currently a line editor for the Georgetown University Undergraduate Law Review.


As of 2018, the Department of Justice no longer considers domestic violence in a foreign country a sufficient condition for foreigners to qualify for asylum in the United States. This decision, entitled “Matter of A-B-”, was issued by former Attorney General Jeff Sessions and reversed the United States’ former immigration policy that granted asylum to most domestic violence survivors.[1] Since “Matter of A-B-” went into effect, immigration judges must deny refugees seeking asylum on the sole basis of domestic violence, even if they will likely continue to experience domestic violence when returned to their native country. The ruling impacts refugees fleeing, among other violence, partner abuse, forced marriages, and legal systems that ignore gendered rights. Critically, this ruling can be overturned by future Attorney Generals.[2] Current Attorney General should consider this course of action to save lives and uphold American values and commitments.

In 2019, NPR published a story detailing the consequences of “Matter of A-B-.”[3] The piece tells the story of a young woman from Nicaragua who fled to the United States with her son after she was repeatedly raped and beaten by her boyfriend. Although she notified the Nicaraguan police, they refused to intervene. In the U.S., the immigration judge presiding over her case acknowledged the significant evidence of her abuse and agreed that she and her son were likely to be harmed if returned to Nicaragua. Nonetheless, he denied her and her son’s request for asylum, citing “Matter of A-B-” in his ruling.[4] Her current status is unknown.

“Matter of A-B-” reflects the persistent, negative trends in the international security community regarding gender. Issues associated with femininity and domesticity—in this case, domestic violence—are often deemed “private” matters that have no bearing on broader “public” concerns such as national security and societal stability.[5] With “Matter of A-B-,” the United States court system legitimized that domestic violence is detached from a community’s overall security and that women’s rights are not necessarily human rights. This ruling, like many policies regarding national security and conflict, essentializes women’s experiences and neglects their complex intersectional identities.  Specifically, “Matter of A-B-” ignores the contexts and systemic injustices that perpetuate cultures of sexual and gender-based violence (SGBV) and generalizes the experiences of all refugee DV survivors. Beyond its moral offenses, this policy violates the U.S.’s commitment to numerous international treaties, such the 1951 United Nations Convention on Refugees, which obliges signatories to ensure asylum-seekers are not returned to nations in which their lives or freedom will be endangered.[6] Indeed, the U.S.’s current immigration policies regarding survivors of domestic violence endanger women, perpetuate harmful gendered security norms, and infringe the U.S.’s commitments to promote gender equality and refugee safety.

The majority of claims for asylum in the United States come from the so-called Northern Triangle region of Central America which comprises three nations: Guatemala, Honduras, and El Salvador.[7] Between 2008 and 2014 alone, the number of U.S. asylum applications received from Northern Triangle country citizens increased by 13%.[8] The outpouring of refugees from these countries is rooted in the on-going violence that began with the end of bloody civil wars in the late twentieth century.[9] For women, the situation is particularly dire. Gang-related violence and domestic abuse are common realities for women in the Northern Triangle  and primary motivators for why many choose to seek asylum in the U.S. Gangs use sexual abuse and threats of rape as a control and intimidation tactic to goad communities into submission. Men considered to be of low social standing–often indigenous men–may be forced to watch gang members rape their wives as an expression of dominance and control. Local teenage girls may be forced to become “girlfriends” of gang members (novias de pandillas).[10] Disobedient partners of gang members may be subjected to psychological abuse and terror to be “shown their place.”[11] The ex-wife of a Guatemalan gang member reported the following: “Twice, I saw the gang kill two young men who approached the block. My ex required me to watch…it was a way of making me more afraid, weaker. How they screamed and begged for their life, I can’t forget it.”[12] Because the police have little control over territories occupied by gangs, most women report feeling unable to seek any kind of protection or help.[13]

By refusing such women fleeing such situations for asylum in the United States, current U.S. immigration policies perpetuate harm against women, both directly and systemically. “Matter of A-B-” and arbitrary court rulings place refugees of domestic violence in direct harm by repatriating them to countries where their lives and liberties are endangered. Standard practices at U.S. immigrant detention centers contribute to women’s suffering as refugees are harassed and abused without consequence.[14]

On a broader scale, Matter of A-B- legitimizes norms and systems that are harmful to women. By defining all refugee survivors of domestic violence as “victims of private criminal activity,” Matter of A-B- essentializes the experiences of all female domestic violence survivors who seek asylum in the U.S., casting them as indistinguishable victims who found themselves in unfortunate circumstances, much like victims of petty theft.[15] Just because the victims were women, Sessions claimed, does not mean they belong to a persecuted group, unprotected by their governments.[16] Sessions did not acknowledge the systemic vulnerabilities women face in their native countries due to their shared, intersectional identities. He also ignored gendered realities women face in their countries: Northern Triangle police forces dismiss many domestic violence allegations; court systems do not issue sentences that protect women and children; indigenous communities are oppressed by gangs and police alike; and women have few opportunities to gain economic independence.[17] Had such realities, and the countless accounts given by refugees, been considered from a gendered perspective, it would have been clear that women from the Northern Triangle countries who have fled domestic violence deserve asylum to protect them from harm.


[1] Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), https://www.justice.gov/eoir/page/file/1070866/download.

[2] https://harvardlawreview.org/wp-content/uploads/2018/12/803-810_Online.pdf

[3] Joel Rose, “As More Migrants Are Denied Asylum, An Abuse Survivor Is Turned Away,” NPR, January 18, 2019, https://www.npr.org/2019/01/18/686466207/its-getting-harder-for-migrants-to-win-asylum-cases-lawyers-say.

[4] Joel Rose, “As More Migrants Are Denied Asylum, An Abuse Survivor Is Turned Away,” NPR, January 18, 2019, https://www.npr.org/2019/01/18/686466207/its-getting-harder-for-migrants-to-win-asylum-cases-lawyers-say.

[5] Ann Tickner, “Feminist Perspectives on International Relations,” Handbook of Internatioanl Relations, file:///Users/anyachj/Downloads/Feminist%20Perspectives%20on%20International%20Relations%20(6).pdf

[6] UNHCR, “The 1951 Reguee Convention,” https://www.unhcr.org/en-us/1951-refugee-convention.html.

[7] Anjali Fleury, “Fleeing to Mexico for Safety: The Perilous Journey for Migrant Women,” United Nations University, May 4, 2016, https://unu.edu/publications/articles/fleeing-to-mexico-for-safety-the-perilous-journey-for-migrant-women.html.

[8] Anjali Fleury, “Fleeing to Mexico for Safety: The Perilous Journey for Migrant Women,” United Nations University, May 4, 2016, https://unu.edu/publications/articles/fleeing-to-mexico-for-safety-the-perilous-journey-for-migrant-women.html.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] United Nations High Commissioner for Refugees, “Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico,” United Nations Human Rights Council, October 2015, https://www.unhcr.org/56fc31864.pdf.

[13] Ibid.

[14] Nora Ellmann, “Immigration Detention is Dangerous for Women’s Health and Rights,” Center for American Progress, https://www.americanprogress.org/issues/women/reports/2019/10/21/475997/immigration-detention-dangerous-womens-health-rights/.

[15] Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), https://www.justice.gov/eoir/page/file/1070866/download.

[16] Ibid.

[17] United Nations High Commissioner for Refugees, “Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico,” United Nations Human Rights Council, October 2015, https://www.unhcr.org/56fc31864.pdf.

Saving the Court

BY: Curtis Yun

Curtis Yun is a sophomore at Georgetown University studying government and anthropology. He is currently an Assistant Editor for the Georgetown University Undergraduate Law Review.


The Supreme Court of the United States is the highest court in the land and the only federal court that is constitutionally mandated. In order to insulate the Court from political influence when hearing cases of utmost importance, the Framers decided to grant life tenure to Justices who are nominated by the President and confirmed by the Senate. Essentially, the Court was designed to be an independent, nonpartisan body that could deliver fully and fairly deliberated legal decisions.

Unfortunately, the original vision of the Framers for a depoliticized judicial branch has vanished. The recent confirmations of Justices Brett Kavanaugh and Amy Coney Barrett laid bare how intensely polarizing the Court has become. Justices [CY1] today are likely to vote in favor of the party that appointed them more consistently than ever before in U.S. history.[1] This is a grave development that has demonstrably led to bitter confirmation battles and the erosion of the Supreme Court’s nonpartisan reputation[2] [3] . If the American people are not confident in the Court’s ability to deliver impartial justice, then the Court’s ability to meaningfully fulfill its constitutionally mandated role of settling important legal conflicts may be in jeopardy.[2]

The political response to this issue has been unproductive and divisive. Democrats have called for packing the Court with their own nominees, while Republicans have expressed their intent to block any kind of reform.[3] Saving the Court will require bold thinking, but it must also be devoid of partisan hackery. A potential solution is the “balanced bench” plan, which was developed by professors Daniel Epps and Ganesh Sitaraman, and prominently supported by 2020 presidential candidate Pete Buttigieg.[4]

The balanced bench plan has several components. First, the Court would start with ten permanent Justices: five affiliated with the Democratic Party, and another five with the Republican Party.[5] Second, these ten Justices would then select an additional five Justices from U.S. appeals courts or possibly district-level courts.[4] [5] [6] The catch is that the party-affiliated Justices must select these additional Justices unanimously or by some supermajority.[7] The five nonpartisan Justices would be chosen two years in advance, and then serve nonrenewable, one-year terms.[8]

This proposal intends to restore the Court’s nonpartisan reputation. Under the balanced bench plan, the permanent Justices would likely agree on additional Justices who are known for their “fairness, independence, and centrism,” and who have a record of voting across party lines.[9] Assuming that the permanent, party-affiliated Justices want their respective views to prevail, they would veto judges who are steadfast partisans and instead compromise on those who are “open-minded and persuadable.”[10] This mechanism ensures that the bench always consists of diverse views and judicial experiences.

In addition, the confirmations of permanent Justices would no longer be as high stakes as they are today. Under this proposal, there are an equal number of Justices who are affiliated with the Democratic and Republican parties, and additional nonpartisan Justices are required in order for the Court to hear cases. Therefore, the fate of controversial issues, such as abortion or immigration, would not rest solely on the outcome of a single confirmation battle.[11] Instead, such cases would actually need to be fully and fairly deliberated by a bench that consists of not only party-affiliated Justices, but also those who have been unanimously selected for their independence and open-mindedness.

Critics of the balanced bench plan have argued that assigning Justices to parties defeats the purpose of depoliticizing the Court[6] [7] . However, Epps and Sitaraman have emphasized that there is currently no reliable actor in the U.S. government that selects Justices without regard for party affiliation.[12] Hence, the best solution is to implement a system in which partisan actors are incentivized to select nonpartisan Justices.[13] The goal is to restore a Court that issues landmark rulings not solely based on predictable party allegiances. In fact, bringing back consensus to the Court is important.

Historically, consensus has been the unwritten rule for the Supreme Court. Most prominently, the Warren Court (1953-1969) delivered landmark decisions with unanimous judgments or overwhelming majorities.[14] In the midst of a politically divided bench, Chief Justice Earl Warren successfully formed winning coalitions and sought to express the full confidence of the Court through historic cases, such as Brown v. Board of Education (1954) and Gideon v. Wainwright (1963) — both were unanimous decisions.[15]

Admittedly, consensus amongst members of the bench is still common, especially in cases that do not concern high-profile political issues. Since 2000, unanimous judgments made up 36 percent of all decisions, while overwhelming majorities made up 15 percent.[16] Nevertheless, as mentioned before, Justices are increasingly voting along party lines, polarizing the American political landscape with alarmingly slim majorities in big cases, such as Bush v. Gore (2000) and Shelby County v. Holder (2013).[17]

If the Court cannot restore its historic reputation of delivering decisions impartially, the institutional legitimacy of the judicial branch itself may be compromised in the future. Hence, serious reform is needed in order to save the Court. The balanced bench plan is one of many solutions which have been proposed to depoliticize and transform the Court. While I believe that this plan would be the most effective solution, the greater issue at hand is that political leaders need to recognize the imperative to restore the nonpartisan judicial branch[8] [9] [10] [CY11]  the Framers had originally envisioned.


[1] Josh Lederman, Inside Pete Buttigieg’s plan to overhaul the Supreme Court, NBC NEWS (Jun. 3, 2019, 3:03 AM), https://www.nbcnews.com/politics/2020-election/inside-pete-buttigieg-s-plan-overhaul-supreme-court-n1012491.

[2] Daniel Epps and Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L. J. 148, 148 (2019).

[3] Amber Phillips, What is court packing, and why are some Democrats seriously considering it?, THE WASHINGTON POST (Oct. 8, 2020, 12:13 AM), https://www.washingtonpost.com/politics/2020/09/22/packing-supreme-court/.

[4] Lederman, supra note 1.

[5] Epps and Sitaraman, supra note 2, at 193.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 194.

[11] Id. at 196.

[12] Id.

[13] Id.

[14] MICHAEL BELKNAP, THE SUPREME COURT UNDER EARL WARREN (2005).

[15] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Gideon v. Wainwright, 372 U.S. 335 (1963).

[16] Sarah Tuberville and Anthony Marcum, Those 5-to-4 decisions on the Supreme Court? 9 to 0 is far more common., THE WASHINGTON POST (Jun. 28, 2018, 3:00 AM), https://www.washingtonpost.com/news/posteverything/wp/2018/06/28/those-5-4-decisions-on-the-supreme-court-9-0-is-far-more-common/.

[17] Bush v. Gore, 531 U.S. 98 (2000); Shelby County v. Holder Shelby County v. Holder, 570 U.S. 529 (2013).


The International Law Governing India-Administered Kashmir and How the Removal of Article 370 has Created a New Normal

BY: Keerat Singh

Keerat Singh is a sophomore in the School of Foreign Service studying foreign service, business, and global affairs. She is currently an Assistant Editor for the Georgetown University Undergraduate Law Review.


Kashmir has historically been a region of contention between India, Pakistan, and China, dating back to when India and Pakistan became independent from British colonial rule in 1947. Although Kashmir technically refers to the Kashmir Valley, it has colloquially come to encompass the Indian-administered regions of Jammu, Kashmir and Ladakh, the Pakistani-administered regions of Azad Kashmir and Gilgit-Baltistan, and the Chinese-administered regions of Aksai Chin and Trans-Karakoram Tract.[1] This large region has been the subject of political skirmishes, protests, and wars between the three nations that control its different corners. Religious violence has also plagued the Kashmir Valley region in particular, as a result of clashes between the Muslim majority in Kashmir and the Hindu majority in India.[2] Sadly, the violence in the Indian controlled part of Kashmir is worse than ever and likely to endure as key legal safeguards on Kashmir’s autonomy are eroded.

The reason the region of Jammu and Kashmir agreed to join India after the India-Pakistan partition in 1947 was based explicitly on the provisions of Article 370 of the Indian constitution, which grant the region a special autonomous status.[3] The article sets out special rules for the Kashmir region, exempting it from following the Indian constitution like other Indian states. Under Article 370, Kashmir is guaranteed its own constitution, its own flag, and sovereignty over all of its laws except those pertaining to finance, defense, foreign affairs, and communications. It also notably denies property rights in the Kashmir region to non-Kashmiris.[4]

In 1954, Article 370 was supplemented by Article 35A, also part of the Indian constitution and known as the Permanent Residents Law. This law allows the local legislature in the Indian-administered region of Kashmir to define what qualifies permanent Kashmir residents. It also forbids any outsiders from residing in Kashmir, owning property, holding local government jobs, or winning Kashmiri education scholarships.[5]

Since the creation of the Indian constitution, Article 370 had been heavily diluted through over 40 presidential orders by the Indian government which acted as amendments to the original article.[6] On the other hand, Article 35A had remained fully intact.[7]

This all changed on August 5, 2019, when the Interior Minister of India, Amit Shah, moved to revoke those two key constitutional provisions, in an effort to unite India under the Hindu nationalist message of the Bharatiya Janata Party (BJP) and Prime Minister Narendra Modi’s government.[8]

The removal went into effect soon after this announcement. Fully aware of the backlash that it would have, the Indian government jailed many prominent Kashmiri political leaders, shut down communication everywhere in the region, cutting off access both within the country and to the rest of the world, and deployed thousands of Indian troops to curb protests.[9] These conditions continued for months following the announcement, despite the Indian government’s denial of any unrest or instability.

In December of 2020, over a year later, the first sign of a return to normalcy appeared as Kashmiris voted in the first local elections since the revoking of their special status.[10] With Kashmir now a federal territory ruled directly by India, the BJP made a major push to unite Kashmiris under their nationalist message and earn votes. However, many Kashmiri separatist parties united on a strong front as well, with many carrying anger towards the BJP over the events surrounding Article 370.[11] The BJP has so far been quite successful, winning 74 seats in the 280-seat District Development Council, the elected local government of the Jammu and Kashmir territory.[12]

Their claims of democracy and normalcy, however, have been less convincing. This is due to the many Kashmiri politicians and public figures still in detention or under threat, the hurried calling of the election, and the obvious BJP propaganda being paraded throughout the region.[13]

Kashmir, although in a better state than last year, seems firmly under the grip of the Indian government and forever changed in the eyes of both Indian domestic law and international law. The state of normalcy that Kashmiris may now be seeking will look very different than the autonomy they are accustomed to and were once legally entitled to.

The Indian government’s perspective on the issue is clear: they believe Kashmir is a vital part of India that will benefit from being a part of the Indian democracy. They attribute the anti-India sentiment in Kashmir to outside forces such as the Pakistani government.[14] Kashmiris, on the other hand, have a distinct identity connected to both Kashmir and Islam. Consequently, they want to govern themselves. Based on opinion polls, nearly 90 percent of Kashmiris feel this way, while the Hindu majority in Jammu and the large Buddhist population in Ladakh are generally content under Indian rule.[15] Kashmir’s substantial Muslim population, which has faced centuries of injustice, will never be satisfied under the rule of a Hindu-majority country like India.

If India continues to assert its rule, Kashmir will continue to be ravaged by internal protests, instability, and discontent. It is the responsibility of international agencies like the UN to recognize the religious issue at play and demand Kashmir gain back its autonomy.

However, there might not be any organizations or countries willing to combat the largest democracy in the world. Therefore, as long as nationalist sentiment rages on in India, Kashmiris may be looking at their new normal.


[1] “Kashmir.” Encyclopedia Britannica, Encyclopedia Britannica, Inc., http://www.britannica.com/place/Kashmir-region-Indian-subcontinent. 

[2] Srivastava, Spriha. “India Revokes Special Status for Kashmir. Here’s What It Means.” CNBC, CNBC, 9 Aug. 2019, http://www.cnbc.com/2019/08/05/article-370-what-is-happening-in-kashmir-india-revokes-special-status.html. 

[3] “Kashmir Article 370: Article 370 and 35(A) Revoked: How It Would Change the Face of Kashmir.” The Economic Times, Economic Times, 5 Aug. 2019, economictimes.indiatimes.com/news/politics-and-nation/article-370-and-35a-revoked-how-it-would-change-the-face-of-kashmir/articleshow/70531959.cms.

[4] “Kashmir Special Status Explained: What Are Articles 370 and 35A?” Al Jazeera, Al Jazeera, 5 Aug. 2019, http://www.aljazeera.com/news/2019/8/5/kashmir-special-status-explained-what-are-articles-370-and-35a. 

[5] Supra. See note 2.

[6] Halder, Anirban. “How J&K’s Special Status Was ‘Diluted’ over the Years.” The Times of India, TOI, 6 Aug. 2019, timesofindia.indiatimes.com/india/how-jks-special-status-was-diluted-over-the-years/articleshow/70547866.cms.

[7] Supra. See note 3.

[8] “Full Text of Govt’s Proposal to Revoke Article 370 in Kashmir.” Business Today, 5 Aug. 2019, http://www.businesstoday.in/current/economy-politics/full-text-of-govt-proposal-revoke-article-370-kashmir-amit-shah/story/370587.html.

[9] Samuels, Elyse. “Kashmir: The Indian Government vs. the Facts on the Ground.” The Washington Post, WP Company, 23 Aug. 2019, http://www.washingtonpost.com/politics/2019/08/23/kashmir-indian-government-versus-facts-ground/. 

[10] Fareed, Rifat. “What Do the Local Elections Mean for Kashmiris?” Al Jazeera, Al Jazeera, 4 Dec. 2020, http://www.aljazeera.com/news/2020/12/4/elections-resume-halted-political-process-in-kashmir. 

[11] Schmall, Emily. “Kashmir Votes, and India Hails It as Normalcy in a Dominated Region.” The New York Times, The New York Times, 22 Dec. 2020, http://www.nytimes.com/2020/12/22/world/asia/kashmir-modi-election.html. 

[12] Press Trust of India. “J&K DDC Election Results: Winning Candidates Declared at 276 Seats; PAGD Gets 110, BJP 74.” Firstpost, 23 Dec. 2020, http://www.firstpost.com/politics/jammu-and-kashmir-ddc-election-results-winning-candidates-declared-at-276-seats-pagd-gets-110-bjp-74-9138831.html. 

[13] Supra. See note 10.

[14] “Kashmir Developments – An Internal Matter for India.” The Jammu and Kashmir Issue, web.archive.org/web/20080616161619/meaindia.nic.in/jk/kashmirissue.htm.

[15] “87 Pct in Kashmir Valley Want Independence – Poll.” Reuters, Thomson Reuters, 13 Aug. 2007, http://www.reuters.com/article/idUSDEL291796.

Google LLC v. Oracle America Inc

BY: Maya Valliath

Maya Valliath is a sophomore in the College studying mathematics and political economy. She is currently an assistant editor for the Georgetown University Undergraduate Law Review.


On October 7, 2020, the Supreme Court heard oral arguments for a case that has been in the making for over a decade. In 2005, after Google’s negotiations with Sun Microsystems, an American software company, to use its Java API in its Android platform fell through, Google proceeded to use Java’s API in its platform without a license. When Oracle acquired Sun Microsystems in 2010, Oracle sued Google for copyright infringement and years of appeals have ensued.[1]

The case heard before the Supreme Court in October sought to settle whether or not the use of Java’s API fell under the exclusive rights of Oracle and whether copyright law protected “a software interface” as a whole.[2]

Google’s Argument

A central theme of the hearing was addressing whether or not the ubiquity of Java’s API conferred fair use rights. Thomas C. Goldstein, representing Google, relied on Section 102(b) of US Code law, which states:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.[3]

Goldstein essentially argued that the Java API is a non-creative method of operation that can be used to make creative products, and therefore Oracle does not have the right to control who expresses its API.[4] The 1880 Baker v. Selden case, which crystalized the idea-expression dichotomy in copyright law, was also heavily referenced in the hearing:

The copyright protection for a book explaining an art or system extends only to the author’s unique explanation of it and does not prevent others from using the system or the forms incidentally used.[5]

By framing Oracle’s Java API as a method of operating, Goldstein argued that Oracle does not have the exclusive right to the use of its API. Justices likened the use of the API to using a QWERTY keyboard; something that if its expression was protected by copyright, would have detrimental consequences for the consumers of several industries and generally hamper productivity and innovation.[6]

Oracle’s Argument

Oracle’s representation, E. Joshua Rosenkranz, outlined two legal principles to argue that Google’s use of the Java API did not constitute fair use. Rosenkranz first stated:

Congress defined literary work to include software and granted copyright protection as long as the code is original. Google conceded Oracle’s code is original. That’s the end of the question.[7]

Rosenkranz went on to argue that Google’s use of the Java API in its own Android software served the exact same purpose that it did in Java. Rosenkranz also made sure to point out that other companies have paid millions of dollars to license the use of Oracle’s Java API. Echoing Justice Alito, he also made clear that major competitors of Google’s, such as Apple, do not use the Java API and have invested billions of dollars to create their own original software, emphasizing that software development as a whole does not rely on Oracle’s Java API. He argued that by granting Google fair use rights because the API was ubiquitous in the software industry, and consequently denying Oracle licensing rights, Oracle was being punished for its innovation and brilliance. Following up on the QWERTY metaphor, Rosenkranz articulated that the burden of innovation would not fall on consumers, a worry of the Justices, but rather on “independent economic actors.” In response to Goldstein’s comment that the Java API was uncreative, Rosenkranz argued that the complexity of the API made it so that it was inherently creative.[8]

Implications of the Upcoming Decision

As the software industry eagerly awaits the SCOTUS outcome, two important factors hang in the balance. It boils down to an almost principal economic problem: how does the government simultaneously lower barriers to entry for innovation while also incentivizing it? On one hand, Google argued several times that siding with Oracle would stifle productivity and innovation in the software industry, forcing developers to reinvent the wheel. On the other hand, Oracle argued that by making its Java API free to use without licensing rights and copyright protections, it would disincentivize the creation of better or newer technologies because their creation would no longer be profitable.


[1]Google LLC v. Oracle America, Inc.: The Supreme Court Considers the “Copyright Lawsuit of the Decade”, Harvard Journal of Law & Technology (2020), https://jolt.law.harvard.edu/digest/google-llc-v-oracle-america-inc-the-supreme-court-considers-the-copyright-lawsuit-of-the-decade (last visited Jan 4, 2021).

[2]Google LLC v. Oracle America Inc, Oyez, https://www.oyez.org/cases/2020/18-956 (last visited Jan 3, 2021).

[3]17 U.S. Code § 102 – Subject matter of copyright: In general, Legal Information Institute (1990), https://www.law.cornell.edu/uscode/text/17/102 (last visited Jan 4, 2021).

[4]Google LLC v. Oracle America Inc, Oyez, https://www.oyez.org/cases/2020/18-956 (last visited Jan 3, 2021).

[5] Baker v. Selden, 101 U.S. 99, 25 L. Ed. 841, 1879 U.S. LEXIS 1888, 11 Otto 99 (U.S. Jan. 19, 1880).

[6] Idem.

[7] Idem.

[8] Idem.

An Overview of the 25th Amendment

BY: Lauren Scarff

Lauren Scarff is a junior in the School of Foreign Service studying International Politics. She is currently a managing editor for the Georgetown University Undergraduate Law Review.


In the aftermath of the insurrection and violence in the Capitol on January 6th, many citizens and lawmakers have called on Vice President Mike Pence to invoke the 25th Amendment to remove President Donald Trump from office.[1] The 25th Amendment is one of the newest amendments to the U.S. Constitution and has rarely been invoked in U.S. history.[2] This moment in time offers a unique opportunity to examine the 25th Amendment’s history, purpose, and current significance.

Drafting of the 25th Amendment began in 1955 as President Eisenhower was recovering from a heart attack. Eisenhower was affected not only by his own health scare, but also by the serious illnesses other presidents had experienced. For example, Woodrow Wilson served the final months of his term incapacitated from a stroke he had suffered in 1919.[3] These concerns over the potential chaos that may ensue should a sitting president ever be unable to perform his duties drove Congress to finally pass the 25th Amendment in 1965, but only after the tragic assassination of John F. Kennedy emphasized the need for such an amendment. The 25th Amendment was ratified in 1967.[4]

The purpose of the 25th Amendment is to assure there is never any confusion over who is acting as president, and the amendment achieves this in four sections.[5] The first section outlines that should a president be removed, the vice president will take his or her place. The second section delineates how presidents should resolve a vacancy in the vice presidency. The third section allows the president to temporarily appoint the vice president as the acting president. Finally, the fourth section, the most relevant given recent events, creates a process through which the vice president and the president’s cabinet can remove a sitting president.[6] The first three sections of the 25th Amendment have previously been invoked; however, the fourth section has never been used since the amendment was ratified.[7]

The fourth section of the 25th Amendment states that if the vice president and a majority of the president’s cabinet submit to the President pro tempore of the Senate and the Speaker of the House of Representatives a written statement declaring that the president is “unable to discharge the powers and duties of his office,” the vice president will assume the position of acting president.[8] This may appear to be the easiest way to remove a president from office; however, section four also indicates that should the president affirm that he or she is, in fact, able to carry out his or her duties, he or she then can resume office. The president can only be officially removed if the vice president objects to the president’s assertion that he or she is fit for office, and two-thirds of Congress votes to support this objection.

There are a few interesting textual ambiguities that have been recently misconstrued by the media and others. The first of which being what was meant by “unable to discharge the powers and duties of his office.”[9] Senator Birch Bayh, one of the authors of the 25th Amendment, made it abundantly clear in debates that the 25th Amendment was not to be used for political or partisan purposes. Senator Bayh believed that the amendment should only be used “if the President was as nutty as a fruitcake. Mental illness, pure and simple, is the only time this provision would be used.”[10]  The 25th Amendment was never intended to be an easier way to impeach and remove a president or to remove a president on the grounds that he or she is disliked.

The second ambiguity of the amendment comes in the process in which a president could assert that he or she is fit for office and reclaim power. One reading of this portion of the amendment indicates that there would be multiple transitions of power from the president, to the vice president, back to the president, and potentially back to the vice president if the vice president chooses to object to the president’s ability to fulfill his or her duties. This interpretation could result in a constitutional crisis as the president and vice president each claim power over the White House and the military.[11] The intention of the text, however, is that the president only reclaims power if the vice president does not object. The text states “the President […] shall resume the powers and duties of his office unless the Vice President [objects].”[12] This means that after the vice president initially assumes the role of acting president, he or she will continue in that role until Congress votes on whether or not to support the vice president’s objection to the president’s ability to be in office.

At these crucial points in the history of the United States, it is important to consider and understand the processes put in place to protect American democracy. Lawmakers, the media, and citizens are all vulnerable to misinterpretations of legislation; however, at critical moments, misinterpretation can lead to constitutional crises. The only way to prevent this is to understand the history, purpose, and pitfalls of pieces of legislation.


[1] Miles Parks, “What the 25th Amendment Says About Removing a Sitting President,” NPR (Jan. 7, 2021, 2:15 PM), https://www.npr.org/sections/insurrection-at-the-capitol/2021/01/07/919400859/what-happens-if-the-president-is-incapacitated-the-25th-amendment-charts-a-cours.

[2] Chloe Jones, “What is the 25th Amendment and what could it mean for Trump?” PBS (Jan. 8, 2021, 1:58 PM), https://www.pbs.org/newshour/politics/what-is-the-25th-amendment-and-what-could-it-mean-for-trump.

[3] Erin Blakemore, “Calls to Replace Trump via the 25th Amendment are growing. Here’s why it’s never happened before,” National Geographic (Jan. 7, 2021), https://www.nationalgeographic.com/history/2021/01/calls-to-replace-trump-25th-amendment-growing-heres-why-never-happened-before/#close.

[4] Parks, supra note 1.

[5] Brian C. Kalt, “The Entire Point of the 25th Amendment,” The Atlantic (Jan. 8, 2021), https://www.theatlantic.com/ideas/archive/2021/01/25th-amendment-section-four/617603/.

[6] U.S. Const. amend. XXV.

[7] Blakemore, supra note 3.

[8] U.S. Const. amend. XXV § 4.

[9] U.S. Const. amend. XXV § 4.

[10] Birch Bayh, One Heartbeat Away: Presidential Disability and Succession 283 (1968).

[11] Kalt, supra note 5.

[12] U.S. Const. amend. XXV § 4.

SCOTUS Preview: The Fourth Amendment, Police Accountability, and Unsuccessful Seizures

BY: Priyanka Shingwekar

Priyanka is a sophomore in the College of Georgetown University studying government, economics, and philosophy. She is a line editor for the Georgetown University Undergraduate Law Review.


This term in Torres v. Madrid, the U.S. Supreme Court will confront a case with important questions for police accountability under the Fourth Amendment of the U.S. Constitution.[1] In the wake of the Black Lives Matter protests this summer, the verdict of Torres is being closely monitored. The outcome could potentially create a constitutional loophole for the use of excessive force by the police when pursuing a suspect without a warrant. The first question before the Court is whether law enforcement officers conduct a “seizure” within the meaning of the Fourth Amendment when they attempt to detain a suspect by the use of physical force but are unsuccessful. The second question is whether physical force must be successful in detaining a suspect to constitute a “seizure.”[2]

In 2014, New Mexico State Police officers Richard Williamson and Janice Madrid were acting upon an arrest warrant for Kayenta Jackson that led them to an apartment complex in Albuquerque.[3] Another citizen, Roxanne Torres was in the parking lot of the apartment complex as the officers approached her car. Perceiving the officers as carjackers, Torres entered her vehicle and drove forward. The officers shot at her twice, injuring Torres as she left the scene. Officers Madrid and Williamson testified that they fired at the driver to stop the car from hitting Madrid out of fear of injury. Torres was later arrested and pleaded no contest to three crimes: aggravating fleeing from a law enforcement officer, assault on a police officer, and unlawfully taking a motor vehicle. A no contest plea means, while she did not admit guilt, she did admit the truth of the facts alleged in the indictment.[4]

            In October 2016, Torres filed a complaint against the police officers in the federal district court, alleging the excessive use of force as a violation of her Fourth Amendment rights.[5] Her claim against the officers is that they committed a violation of the Fourth Amendment for unreasonable seizure in the shooting. However, the court concluded that the officers had not successfully seized Torres at the time of the shooting. Without a seizure to cite, the court decided that there could be no violation of the Fourth Amendment’s prohibition of unreasonable search and seizure. Therefore, the district court granted summary judgement for the officers. The U.S. Court of Appeals for the Tenth Circuit affirmed the lower court’s decision.[6] Thus, Torres filed an appeal with the Supreme Court. Torres asked the Supreme Court to reverse and hold that whenever the police use deadly force, such as firing their weapons to restrain someone, the police seize that person within the meaning of the Fourth Amendment, even if the person eludes police custody.

            With this case, the Court will need to clarify what constitutes as a seizure under the Fourth Amendment. Specifically, the Justices will need to delineate the differences between touching someone directly with one’s hands and using one’s hands to touch another person with an inanimate object, on the other in a constitutional definition of a seizure.[7] One question that arose briefly at the oral argument in this case was whether shooting a person in the back qualifies as a seizure even though the officer’s “touching” of or applying physical force to the suspect happened indirectly through the projectile of a bullet.[8] Furthermore, the second issue of this case is whether an unsuccessful seizure is still considered a seizure for purposes of the Fourth Amendment. The officers maintained that to successfully complete a Fourth Amendment seizure, they would have had to intentionally acquire physical control, which did not occur because Torres fled from the scene. However, the Court had previously ruled in California v. Hodari D. in 1991 that touching or applying physical force to the suspect is a seizure, even if the touching or physical force fails to lead to successful apprehension.[9] The new question in front of the Court is whether that seizure would be considered unreasonable and, thus, a violation of Torres’ Fourth Amendment rights.

            Although this case does not directly pertain to a current anti-police protest, Torres could create a loophole that would give the police more protection in future excessive force cases. In an amicus brief, the NAACP Legal Defense and Educational Fund wrote that a ruling in favor for the police could “open the door to countless more unjustified shootings against innocent people, a burden that will disproportionately affect African-American communities.”[10] In cases where victims of police brutality are able to flee, they may not be able to rightfully contest the use of excessive force that would have violated the Fourth Amendment. If the Court rules that the unreasonable shooting of Torres does not constitute an illegal seizure, this could also have dangerous results for the use of other forms of physical force, such as tasers or batons. At a time where the U.S. has become increasingly aware of police brutality, the verdict of Torres v. Madrid is anxiously awaited.

            I believe that the Court should rule in favor of Torres in this case. The Fourth Amendment’s protection against unreasonable searches and seizures embodies the core values of security and privacy, and a verdict for the police officers would go against the central aim of the amendment’s provisions. To accomplish this, the definition of a “seizure” should be somewhat expanded to encompass the different ways a police officer can apply force, whether through physical touch or through a bullet.


[1] Torres v. Madrid, SCOTUSblog, https://www.scotusblog.com/case-files/cases/torres-v-madrid/.

[2] Torres v. Madrid, SCOTUSblog.

[3] Ibid.

[4] Robert A. Beattey, “What You Should Know About Pleading ‘No Contest,’” Ohio State Bar Association, September 27, 2016, https://www.ohiobar.org/public-resources/commonly-asked-law-questions-results/
criminal-justice/what-you-should-know-about-pleading-no-contest/.

[5] Torres v. Madrid, Constitutional Accountability Center, 2021, https://www.theusconstitution.org/litigation/torres-v-madrid/.

[6] Torres v. Madrid, SCOTUSblog.

[7] Sherry F. Colb, “What Is a Seizure, and What Is a Holding? The Court Hears Argument in Torres v. Madrid,” Verdict Justia, November 4, 2020, https://verdict.justia.com/2020/11/04/what-is-a-seizure-and-what-is-a-holding-
the-court-hears-argument-in-torres-v-madrid.

[8] Torres v. Madrid, SCOTUSblog.

[9] California v. Hodari D., Oyez, https://www.oyez.org/cases/1990/89-1632.

[10] Nick Sibilla, “Supreme Court Could Create New Fourth Amendment Loophole For Police Shootings,” Forbes, October 12, 2020, https://www.forbes.com/sites/nicksibilla/2020/10/12/supreme-court-
could-create-new-fourth-amendment-loophole-for-police-shootings/?sh=77e975e95842

Working Through Challenges to Repatriating Foreign Children of the Islamic State

BY: Veronika Matysiak

Veronika Matysiak is a sophomore in the School of Foreign Service studying international relations and affairs. She is a line editor for the Georgetown University Undergraduate Law Review.


The functional defeat of the Islamic State (IS), designated a terrorist organization by the US State Department, the European Union, and the UN Security Council, has not ended the problems arising from the group.[1] IS, once committed to imposing a fundamental Islamic theocratic state or proto-state, controlled significant swaths of Iraq and Syria but was functionally defeated after losing 95 percent of its territory by the end of 2017.[2] Captured fighters and families have been relocated to detention camps in Syria, where 12,300 of the 70,000 detainees are foreign nationals.[3] A significant number that remain in the camps are women who emigrated from western states to marry fighters and their children from those marriages. From this, a problem arises. What is the legal status of these women and children? Many of the women left their homes voluntarily: some disposed of their passports, while others renounced their citizenship. Some committed acts of terrorism, while others just abetted. The reality is that many states do not want these women back, nor the children that come with them.

Many states have either formally or informally prohibited IS women from reentry. On one end of the spectrum, the United Kingdom has formally divested over 100 fighters and women of their citizenships.[4] Yet, on the other end, Russia, Malaysia, Uzbekistan, Kosovo, and Tajikistan have attempted to repatriate IS participants.[5] In a murky middle ground, the US has extradited some citizens, while France has allowed some citizens to be tried on terrorism charges in Iraq and sentenced to death.[6] There is no internationally consistent approach to repatriating IS women, and few approaches are consistent with international law, especially in regard to children born to IS.

Of the 12,300 foreign nationals in Syrian detention camps, 8,700 are children.[7] By closing off access to consular assistance to IS women, states are effectively rendering children stateless for the sins of their parents. This is in violation of several international conventions, namely the UN Convention on the Rights of the Child, UN Conventions on Statelessness, the International Covenant on Civil and Political Rights, and the European Convention on Nationality. Each of these agreements explicitly secures the right of all children “to acquire a nationality,” or for states to facilitate protection for children born to nationals.[8] [9] These protections stem from the concepts expressed in the Universal Declaration of Human Rights “that childhood is entitled to special care and assistance.” First, this right is protected by the family, “the fundamental group of society.”[10] In this case, once the family has proven unable to properly provide for the child, the duty falls on the state, which is explicitly named as a protector in the conventions.

It is inaccurate to claim that states are not responsible for ensuring these rights; rather, it is unpopular politically for states to devote resources to those who are perceived as traitors to their country. Violations of these conventions cannot be dismissed as a necessary by-product of national security concerns associated with repatriating IS fighters. While there is a legitimate security element that may be considered, it cannot outweigh the rights guaranteed to children for their protection and development. Beyond even moral arguments, there are emerging tangible case studies that demonstrate it is possible to fully repatriate former IS associates.[11] The fact that there is no effective enforcement arm of these conventions does not invalidate state commitments; if anything, it reinforces that the rights of those who have no other protection are self-evident.


[1] Foreign Terrorist Organizations – United States Department of State, U.S. Department of State (2020), https://www.state.gov/foreign-terrorist-organizations/.

[2] Timeline: the Rise, Spread, and Fall of the Islamic State, Wilson Center (2019), https://www.wilsoncenter.org/article/timeline-the-rise-spread-and-fall-the-islamic-state.

[3] Henrik Pryser Libell, ISIS Wife’s Return to Norway Divides Government, The New York Times (2020), https://www.nytimes.com/2020/01/20/world/europe/isis-norway.html.

[4] Jamie Dettmer, Britain Strips More Than 100 Islamic State Fighters of Citizenship, Voice of America (2017), https://www.voanews.com/europe/britain-strips-more-100-islamic-state-fighters-citizenship.

[5] Women and Children First: Repatriating the Westerners Affiliated with ISIS, Crisis Group (2019), https://www.crisisgroup.org/middle-east-north-africa/eastern-mediterranean/syria/208-women-and-children-first-repatriating-westerners-affiliated-isis.

[6] Women and Children First, supra note 5.

[7] Libell, supra note 3.

[8] International Covenant on Civil and Political Rights, UN OHCHR, 23 March 1976;

Convention on the Rights of the Child, UN OHCHR, 2 September 1990.

[9] European Convention on Nationality, Council of Europe, 6 November 1997.

[10] Convention on the Rights of the Child, supra note 8.

[11] Women and Children First, supra note 5.

How a Unanimous US Supreme Court Victory is Helping to Change the US Military’s Culture of Sexual Assault

BY: Paris Nguyen

Paris is a sophomore in the School of Foreign Service majoring in International Politics. He is a line editor for the Georgetown University Undergraduate Law Review.


In a 2019 study on sexual misconduct in the military conducted by the Department of Defense, accountability and discipline were identified as crucial factors that were vital to a positive work culture. Holding service members liable for their actions and enforcing punishment led to a more structured and positive environment while tolerating negative behaviors created harmful working environments.[1] Surveys conducted in the study further revealed that senior leadership had a history of ignoring infractions concerning sexual harassment.[2] Some individuals did not even believe those infractions were inappropriate.[3] By ignoring any cases of sexual harassment, the leadership within the military effectively normalized the inappropriate behavior. This creates a toxic military culture that weakens the “zero tolerance” policy of the armed forces. Since 2012, the number of reported sexual assaults within the US military has rapidly increased and reached an all-time high of 6,236 cases in 2019.[4] Even more alarming is the fact that this number fails to account for the unreported assaults and cases involving civilians or foreign nationals. The US military has a clear problem with sexual assault that stems from its culture of complacency towards offenders, and unfortunately, there exists no easy solution to this issue. However, the recent Supreme Court case of United States V Briggs (2020) serves as a small step in the right direction by holding offenders and leaders accountable for their actions. 

In February of 2014, LtCol Michael Briggs (USAF) was court-martialed in violation of Article 120(a), Uniform Code of Military Justice (UCMJ), for raping Airman First Class DK, a subordinate of his flight squadron.[5] The violation itself occurred in 2005, eight years before the court-martial. Under the current UCMJ, the statute of limitations for the majority of offenses is five years. However, military offenses, “punishable by death, may be tried and punished at any time without limitation.” under Article 43(a).[6] Rape is one of 14 offenses still punishable by death under the UCMJ today. Therefore, the case moved forward resulting in a military judge finding Briggs guilty of rape and sentencing him to dismissal from the Air Force, five months imprisonment, and a reprimand.[7]

Contrary to the UCMJ, Coker V Georgia (1977) established that the death penalty cannot be administered for cases of rape under the 8th amendment.[8] Using this precedent, Briggs took the case to the Court of Appeals for the Armed Forces (CAAF) arguing that the five-year statute of limitations should apply since only offenses punishable by death can be tried indefinitely under UCMJ. The CAAF overturned the Court Martial concluding that “punishable by death” in Article 43(a) of the UCMJ meant “capable of punishment by death when all applicable law is taken into account.”[9] Since Coker V Georgia was an “applicable law,” the case of Briggs was therefore subject to the five-year statute of limitations. The case was dismissed by the CAAF, and Briggs faced no consequences for his actions.

The US appealed this case to the Supreme Court and was granted certiorari on November 15, 2019. In an 8-0 decision, the CAAF’s ruling was overturned enabling the Air Force to reinstate the original Court Martial. In the opinion of the court, led by Justice Alito, he stated that the “punishable by death” statute of limitation exception in the UCMJ is a “term of art… defined by the specification of the punishments set out in the penalty provisions of the UCMJ.”[10] A “term of art” is a phrase that has a precise, specialized meaning.[11] In this case, the specialized meaning of “punishable by death” is tied to the UCMJ, not “all applicable law” as argued by Briggs.

Justice Alito cited three reasons for this decision. First, the UCMJ is the most natural referent for deciding what is “punishable by death,” not other external bodies of law [ie. Coker v. Georgia]. And offenses “punishable by death” includes rape under UCMJ.[12] Second, adopting an interpretation of “punishable by death” that applies “all applicable law” would create a “statute of limitations that no one could have understood with any real confidence.”[13] Essentially, applying “all applicable law” to decide whether rape is punishable by death in the case of Briggs creates numerous other unresolved and complex Constitutional questions. Lastly, because the purpose of the five-year statute of limitations in the UCMJ enacted by Congress is different from the purpose of the Eighth Amendment, the relation between the UCMJ Statute of Limitation and the eighth amendment should be taken lightly.[14] This means that the Eight Amendment should not be relied upon in this case as Briggs had done. In short, the Court believed that “punishable by death” was a term of art that allows the case to be prosecuted indefinitely under UCMJ. 

The decision in United States V Briggs effectively closed the statute of limitations loophole utilized by other offenders to avoid prosecution. In 2000, Master Sgt Richard Collins violently raped Harmony Allen, a military technician. It was not until 2017 that Collins was convicted and sentenced to 16.5 years behind bars only to be released after the CAAF’s ruling on Briggs. Collins, like Briggs, had his charges dropped and walked away facing zero consequences for his actions.[15] Instances such as Briggs and Collins initially escaping justice are detrimental to the US military’s efforts to combat sexual assault because it reaffirms the lack of accountability and leadership within the military justice system and further normalizes the acceptability of sexual assault. Furthermore, it deters current and future victims from coming forward to report their assaults because they rightfully believe that not much will occur after a report is made. By reversing the CAAF’s decision, the Supreme Court helped combat the current culture of sexual assault by enabling the military to prosecute any other offenders who utilized the statute of limitations loophole. This in turn helps restore faith in the military justice system by demonstrating that offenders will face consequences for their actions. Hopefully, this will lead to more victims feeling confident enough to speak up and hold offenders accountable. In addition, as concluded by the DOD study, the accountability and discipline that emerged from the decision help to create a more structured and positive work culture. While the decision in US v. Briggs alone cannot prevent further incidents of sexual assault from occurring, it serves as a small victory in the larger battle against the current culture of sexual assault in the US military.

When asked about the military’s rampant sexual assault problem, Former Defense Secretary Chuck Hagel stated that “We need cultural change, where every service member is treated with dignity and respect, where all allegations of inappropriate behavior are treated with seriousness, where victims’ privacy is protected, where bystanders are motivated to intervene and where offenders know that they will be held accountable by strong and effective systems of justice.”[16] This necessary culture change can only begin by holding individuals accountable for their actions to demonstrate that sexual assault will not be tolerated within the US military.


[1]Department of Defense. 2019. Military Service Gender Relations Focus Groups Overview Report. [online] Available at: https://media.defense.gov/2020/Apr/30/2002291696/-1/-1/1/15-ANNEX-1-2019-MILITARY-SERVICE-GENDER-RELATIONS-FOCUS-GROUPS-OVERVIEW-REPORT.PDF

[2] Id.

[3] Id.

[4] Department of Defense. 2020. Annual Report on Sexual Assault In The Military. [online] Available at: https://media.defense.gov/2020/Apr/30/2002291660/-1/-1/1/1_DEPARTMENT_OF_DEFENSE_FISCAL_YEAR_2019_ANNUAL_REPORT_ON_SEXUAL_ASSAULT_IN_THE_MILITARY.PDF.

[5] United States v. Briggs, No. 16-0711-AF (C.A.A.F 2019)

[6] Uniform Code of Military Justice (UCMJ), 10 U. S. C. § 843(a) (2006)

[7] United States v. Briggs, No. 16-0711-AF (C.A.A.F 2019)

[8] Coker v. Georgia, 433 U.S. 584 (1977)

[9] United States v. Briggs, No. 16-0711-AF (C.A.A.F 2019)

[10] United States v. Briggs, 592 U.S. 1 (2020)

[11] Term of Art, Merriam Webster’s Dictionary. (11th ed. 2020)

[12] United States v. Briggs, 592 U.S. 1 (2020)

[13] Id.

[14] Id.

[15] Catherine Valentine, Et. al, Loophole lets convicted military rapists walk free; victim shares her story, Knoe News. (May 14, 2019)

https://www.knoe.com/content/news/Loophole-lets-convicted-military-rapists-to-walk-free-victim-shares-her-story-509937121.html

[16] Jim Garamone, SecDef calls for culture of dignity, respect, Am. Forces Press Service. (May 8, 2013)

https://www.af.mil/News/Article-Display/Article/109247/secdef-calls-for-culture-of-dignity-respect/.

The Guantanamo Veil: The Right of Habeas Corpus to Detainees Under the Jurisdiction of the United States

BY: Karan Balaji

Karan is a sophomore in the School of Foreign Service studying international political economy. He is currently an editorial assistant for the Georgetown University Undergraduate Law Review.


Since the War on Terror was launched by the United States in response to the tragic attacks of 9/11, the treatment of suspected terrorists has become a widely-debated legal issue. One particular question stands out—should prisoners held in the U.S. naval base of Guantanamo Bay have the right to habeas corpus? In other words, do these detainees reserve the right to challenge the legality of their restraint by another entity? I argue here that these prisoners not only deserve the right to habeas, but that habeas must be granted to anyone detained within the jurisdiction of the United States.

To understand why prisoners detained on soil under United States jurisdiction do reserve the right to habeas, it is necessary to compare the decision-making behind two landmark cases regarding habeas and national jurisdiction— Johnson v. Eisentrager, 339 U.S. (1950), and Rasul v. Bush, 542 U.S. 466 (2004). In Eisentrager, the Court dismissed a petition for habeas corpus by twenty-one German detainees, stating that the respondents’ detainments did not lie within the bounds of the United States’ federal courts’ jurisdiction. Rasul ruled in favor of detainees in the American naval base at Guantanamo Bay petitioning for habeas, ruling that the base was within the jurisdiction of the United States, where habeas rights could be applied.

The Rasul Court states:

“The United States occupies the base, which comprises 45 square miles of land and water along the southeast coast of Cuba, pursuant to a 1903 Lease Agreement executed with the newly independent Republic of Cuba … “the Republic of Cuba consents that during the period of the occupation by the United States . . . the United States shall exercise complete jurisdiction and control over and within said areas.” In 1934, the parties entered into a treaty providing that, absent an agreement to modify or abrogate the lease, the lease would remain in effect “[s]o long as the United States of America shall not abandon the . . . naval station of Guantanamo.” Rasul v. Bush, 542 U.S. 466, 471 (2004).

The Court explicitly acknowledges that the United States could exercise “complete jurisdiction and control” over the leased areas provided by the lease agreement with Cuba, over which the Guantanamo Bay naval base exists. Not only does the United States exercise jurisdiction over the territory in which Guantanamo detainees are currently being held, as per the lease agreement, but after 1934, the United States could exercise such jurisdiction in perpetuity as the lease would “remain in effect” until the United States withdrew from the naval base. Id., at 471.

In order to dismiss the petition for habeas filed by the twenty-one respondents in Eisentrager, the Court resorts to a six-part test to determine whether the detainees are constitutionally entitled to sue for habeas. The Court states:

“We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption, we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States. We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” Johnson v. Eisentrager, 339 U.S. 763, 777-778 (1950).

The Court also mentions that “in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act,” stating, however, that war “exposes the relative vulnerability of the alien’s status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us.” Id., at 771.

Using this test, the Eisentrager Court found it appropriate to deny any constitutional claims by the respondents to receive habeas. In essence, the Court employs all six points of contention to determine whether the constitutional right to habeas (as provided by Art. I, sec. 9, c. 2—the Suspension Clause—of the Constitution) applies to the German detainees. The German detainees ultimately fail this test (“no right to the writ of habeas corpus appears.” Id., at 781). Additionally, the Court stresses that the offense, capture, trial, and punishment of the detainees were “beyond the territorial jurisdiction of any court of the United States,” and that the constitutional rights of an alien are impaired if the alien is a national of a country at war with the United States. This is where an important constitutional tool comes into play—the Suspension Clause.

The Clause states “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, sec. 9, c. 2. There is no indication of the citizenship status of a prisoner in the clause, and the Eisentrager Court itself does not consider citizenship to be the central point of contention. It can be reasonably inferred from all contentions in the Court’s test, as well as the emphasis placed on the facts of the detainees’ detainment’s far removal from the territorial jurisdiction of U.S. courts, that the facts of an alien’s detainment must comply with all factors of the six-part test, the extraterritoriality of their detainment, and the belligerent status of the alien’s residential nation in order for the alien to be denied their constitutional right to habeas as provided for by the Suspension Clause. The decision of Eisentrager is not challenged, and its framework acts as precedent for constitutional determination.

Rasul v. Bush demonstrates that providing substantial evidence of differentiability in the facts of an alien’s detainment and the precedent set by Eisentrager allow for an alien to exercise their right to habeas. Ruling in favor of the detainee petitioners, the Rasul Court states:

“Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners’ constitutional entitlement to habeas corpus.” Rasul v. Bush, 542 U.S. 466, 476 (2004).

In order to make its decision in favor of the detainees, the Court contrasts the situation of the detainees with the situation of Eisentrager respondents and subsequently takes crucial note of how the test utilized in Eisentrager was relevant to the Germans’ constitutional entitlement to habeas. A similar approach must be taken to analyze the facts of Guantanamo prisoners’ detainments, to demonstrate that their cases share a similar fact pattern with the petitioners in Rasul, but that their detainment does not comply with the framework created by Eisentrager. Understanding that the United States exercises jurisdiction over the Guantanamo Bay naval base is the first and foremost indication that the facts of Guantanamo detainment differ too greatly from the story of Eisentrager. The Guantanamo detainees are currently being held within the territorial jurisdiction of the United States, already conflicting with the facts of the detainment of the German respondents, who were imprisoned in a United States army-run prison on occupied German soil. The Eisentrager Court relies on the fact that the German detainees’ “trial and their punishment were all beyond the territorial jurisdiction of any court of the United States,” and so they could rightfully withhold any constitutional right for the aliens. However, acknowledging the Court’s claim that “the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act,” Guantanamo detainees are expressly granted the constitutional right to habeas corpus by the precedent set by Eisentrager as the naval base at Guantanamo Bay is within the territorial jurisdiction of the United States. Johnson v. Eisentrager, 339 U.S. 763, 778 (1950), Id., at 771. 

Of course, it’s important to understand the historical application of rights under the jurisdiction of a state, and its derivation from common law. The Rasul Court recalls that under common law, “courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, as well as the claims of persons detained in the so-called “exempt jurisdictions,” where ordinary writs did not run, and all other dominions under the sovereign’s control.” Rasul v. Bush , 542 U.S. 466, 481-482 (2004). Pointing to cases like United States v. Villato, where habeas relief was granted to non-citizen detainees in the United States, the Court further backed their claim that common law, as utilized in the United States, provided for habeas relief to non-citizens under the jurisdiction of the United States. Id., at 481. Further historical evidence of the writ of habeas corpus extending anywhere under the jurisdiction of a state is provided by Judge Rodgers in his dissent of Boumediene v. Bush, 476 F.3d (D.C. Cir. 2007):

“There is ample evidence that the writ did issue to faraway lands. In Ex parte Anderson, 3 El. & El. 487, 121 Eng. Rep. 525 (Q.B.1861), superseded by statute, 25 & 26 Vict., c. 20, § 1, the Court of Queen’s Bench exercised its common-law powers to issue a writ of habeas corpus to Quebec in Upper Canada after expressly acknowledging that it was “sensible of the inconvenience which may result from such a step.” Id. at 494-95, 121 Eng. Rep. at 527-28; see also Brown, 5 B. & S. 280, 122 Eng. Rep. 835 (issuing a writ to the Isle of Man in the sea between England and Ireland). English common-law courts also recognized the power to issue habeas corpus in India, even to non-subjects, and did so notwithstanding competition from local courts, well before England recognized its sovereignty in India.” Id., at 1003.

Justice Rodgers employs common law to argue that state authorities like the English government may extend the writ of habeas to anywhere under its jurisdiction, regardless of hindrance in the case involving Upper Canada and regardless of sovereignty in the issuing of habeas corpus in India. In the same light of traditional jurisprudence, the Rasul Court states “No party questions the District Court’s jurisdiction over petitioners’ custodians.” Rasul v. Bush, 542 U.S. 466, 483 (2004). Theoretically, habeas corpus, as expressed in the Suspension Clause, should extend over any territory where an American official exercises the jurisdiction of the United States and, in this case, to an American custodian over prisoners held in Guantanamo Bay. Liberal democracies today champion the use of legal institutions because of their ability to standardize the treatment of any individual under the supervision of the state. Unlike in, say, a theocracy, where inequality is fostered by adherence to archaic custom and laws not rooted in reason, a liberal state theoretically upholds egalitarianism under the presumption that law is absolute. Guantanamo Bay suggests otherwise, standing as unfortunate evidence that law is merely “absolute” to those who can gain proper exposure to it.