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Definition
citizenship clause-born in US citizen
Due process (5th)- can inhibit rights w/o fairness now applies to states
equal protection to all people |
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| separate but equal, train cars |
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| overturned separate but equal |
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De jure- law makes separation
De facto- demographics |
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| 3 classes equal protection |
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Definition
| strict, intermediate, minimal |
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| compelling and narrow, race, nationality religion and all fundamental rights |
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| substantial, exceedingly persuasive gender |
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| rational relationship to a legitimate gov end age weight income everything else |
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| laws to correct past legal oppression (de jure) strict, holisitic review |
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didnt get med school due to the slots reserved form minorities violate equal protection
holistic approach |
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| vote age 18 due to war vietnam |
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| 4th amendment right to reasonable expectation of privacy, phone booth, |
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Definition
warrant/search
substance chance of crime
totality- of crimes
reliability- of source/info
particularity- limited search area |
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Definition
plain view
search incident arrest-search around
automobile
stop frisk
consent
exigent-emergency
non-criminal- locker inspection |
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| exclusionary rule civilians |
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Definition
| suppress evidence due to warrant less search, fruit poisonous tree, and all subsequent evidence |
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| exception to exclusionary rule accidentally put wrong address on a warrant |
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| no person compelled to testify against oneself plead 5th, not apply in civil case |
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| testify against others has immunity from anything says |
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| use and derivative immunity |
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Definition
can prosecute, just cant use testimony
anything says or leads to the discovery of evidence |
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miranda rights
conclusive presumption
reputable presumption |
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Definition
Escobedo v usa explain due process, remain silent, lawyer
must be read when in custody, no excuse
warrant |
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Definition
Article 31
read when suspect, if not read suppress all evidence and testimony until read |
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Definition
| set of regs promulgated by exec branch provides details of military justice system |
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| law enacted by congress that provides the outline for the military justice system |
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| Crime by court martial must be service related over turned by Solorio |
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mollested 2 girls of post
court martial applies to any crime committed by soldier, (not spouse) |
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US v King
Final pay
paperwork
clearing process |
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Definition
| Ban on political speech/demonstrations on post, court decided that it's allowed if commander deems it's traditional, and allowed if not danger to loyalty/order. |
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| used a precedent for Spock, didn't apply because post in Flowers was an open forum |
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| Religious child care, Free exercise (parents right to have religious child care) and Establishment (military not promoting religion) People won |
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1)unscheduled took place after receiving evidence
2)conducted on select individuals
3)examination more rigorous on some then others |
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| email case, do not have reasonable expectation of privacy since on a government network |
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Definition
Given regardless if in custody
must include accusation
have right of free legal counsel |
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Definition
When suspect need rights under UCMJ
full nelson killed soldier accidentally
1) subjective- reasonable person would think that person is a suspect
2) objective- evidence |
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Term
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Definition
Drugs on flight, not required article 31 because was not looking for evidence against the accused, safety thing
1) question occupy an official position
2) could query used to further an investigation
3) reasonable grounds to suspect person is guilty |
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Definition
| Commander questioning soldier in cell, required article 31, was not a friend, had command responsibility |
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| Proof non-judicial under article 15 |
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Definition
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| minor criminal, disciplinary issue |
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| Punishments protected under UCMJ due process |
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Definition
| Pay, incarceration, separation, not restriction |
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Definition
| intent, recklessness, negligence, blameless |
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| crimes in planning or incomplete/unsuccessful |
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Definition
| offering to pay for a crime to be committed, offer has to be made, cant be charge with solicitation and murder |
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Definition
1) agreement of 2+ people
2) one person commits an overt act to further crime
joint behavior most dangerous
can be charged with conspiracy and murder |
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Definition
alibi-excuse
self-defense- prosecution must prove otherwise
instanity- defense must prove |
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Definition
| UCMJ bringing of formal charges |
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Definition
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| judge asks guilty if they fully understand the plea bargain and if they want to accept/back out |
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Definition
1) in army at time of offense
2) in army at time of trial
not under UCMJ if committed b4 army or if discovered after leave army |
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Definition
ms covert civilian killed husband military
constituion over rules treaties and civilians cannot be charged under UCMJ |
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Definition
| Freedom of speech for military, allowed but cannot incite violence, or have the likelyhood of inciting violence |
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Definition
vote
express opinions but not as the army
give $$
Cant
solicit $$
promote candidate
run for office |
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Definition
| Yamaka, religious paraphernalia, allowed if does not interfere with military function/ appearance |
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Definition
| look for items that effect readiness of troops |
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Term
burden proof
criminal
civil
will/$$, UCMJ |
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Definition
Beyond a RD- 95-100% guilt
preponderance- 51% guilt
clear convincing- 65-75% |
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Definition
| legal in barracks, need warrant for private residence |
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Definition
| drug test inspection because thought he was using, should have been read rights and charged |
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Definition
| commander, 30days 1 month pay |
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Definition
| Brigade CM less year, 3 member panel |
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Definition
authority of court to rule over constitutionality of other branches laws
(Marburry v Madison) |
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| article 6 constitution is the law of the land |
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| order by court to another branch of government to perform an act |
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| authorizes the supreme court to pass on the validity of state legislation and review decisions |
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| decisions based off of previous acts and precedents |
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| dual system in which governmental powers are constitutionally distributed between central and local authorities |
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Definition
| Powers expressly or implication assigned to the national government |
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| powers to the state because that expressly delegated to the government |
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Definition
| gives gov powers to run the nation. from necessary and proper |
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| necessary and proper clause |
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Definition
| elastic clause, gives gov powers to run the nation. from necessary and proper |
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Definition
| a case for federal court over a constitution dispute, treaty, interstate matters |
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Definition
| enumerated power, article 1 sec 8, congress has power to regulate commerce with foreign nations, interstates, and indians |
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| power of the government listed in the constitution |
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| restraint on states to regulate commerce even in the absence of national government |
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Definition
| article 1 sec 8, congress power to lay and collect taxes, duties to provide for the common defense and general welfare |
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| not a sales tax, income/property tax, directly to the government |
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| government spending meant to influence state law where congress has no power, (withhold funds for highway for 21 drinking age) |
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| right for certain members not to appear before court or hand over documents |
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Definition
| law struck down because it may interfere with constitutional rights |
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| laws rejected because too vague and violate due process |
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| compelling and legitimate interest in the restriction of liberty (nationality/race) |
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| no law establishing a religion |
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| no law prohibiting a religion |
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| tests for establishment clause |
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Definition
| lemon, endorsement, agostini, coercion, child benefit |
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Definition
| religion, secular purpose, primary effect neutral, not promote excessive entanglement between gov and religion, |
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Definition
| religion, no signal that the religion is preferred or favored |
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Definition
| religion, no indoctrination, not directing benefiting one religious group, no excessive entanglement |
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| bars policy that coerces any to support in religious exercise |
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Definition
| primary benefits of the religion, children in school |
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| exemptions from law due to religious belief |
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| a law places a substantial obstacle in the expression or exercise of personal liberty |
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Definition
| judicial review, marbury wanted to his court seat lost case. |
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Definition
| define necessary and proper, create laws not expressed in constitution to run country, national bank |
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Definition
| ferry rights, commerce clause |
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Definition
| limit commerce clause, brought gun to school |
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Term
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Definition
| margine v butter, limiting tax power |
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| limiting federal tax power, |
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| youngstown sheet v sawyer |
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Definition
| defining limits of executive authority (test), president took a steel mill congress disagreed |
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Definition
1) agree with congress (hard overturn)
2) neutral congress (medium)
3) disagree (easiest to overturn) |
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Term
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Definition
| NY obtained classified documents, was allowed to publish it, first amendment |
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| Santa Fe Independent school v Doe |
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Definition
| prayer during football game, ruled as public and a violation of establishment clause |
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Term
| employment division v smith |
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Definition
| Court not issue an exemption from a generally applicable criminal law |
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Term
| planned parenthood v casey |
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Definition
| must inform a parent, ruled no, right to abortion covered in due process |
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Definition
| texas gays, ruled in favor of lawrence, due process, state had no interest that justified the invasion of privacy, overturned bowers v hardwick |
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Definition
| freedom speech test, (incite, imminence, likelihood) |
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Definition
| press/spoken, have to proof they knew of the info was wrong |
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Definition
| random inspections covered for welfare of unit, breathalyzer |
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| race/religion, gender, age/income |
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Definition
strict-compelling narrow interest
intermediate- exceedingly persuasive
minimal-rational |
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Definition
| order on which CM will be held, by the convening authority |
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| right to have 1/3 enlisted |
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| unlawful command influence, commander said needed a higher lvl court martial. |
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Definition
| required to propose evident to support a fact |
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| sent case to CM then dissuaded troops from witnessing |
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Definition
war violations, excused from blame if
1) imminent threat of harm
2) real
3) inevitable |
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Definition
| officer is responsible for carrying out an illegal or if it is illegal or immoral unethical to a rational person |
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| illegal orders responsibilities |
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Definition
must be truly illegal not philosophical
1) don't obey
2) ask for clarification
3) report it
don't relieve command |
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Definition
commander is responsible for sub actions
1) if see it
2) hear about it
3) see red flags |
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Definition
1) detainee removed from room when witness brought it
2) allowed to testify hersay |
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Term
| Military Commission Act of 2006 |
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Definition
| no habeous corpous and commissions are allowed |
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Term
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Definition
| no violation of habeous corpus unless in rebellion or invasion |
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Term
| unlawful command influence |
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Definition
Can't do
express opinion on a case or have a policy letter influencing junior commanders
Can do
send a case up to be handled |
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Definition
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Definition
1) wounded/armed in field
2) at sea
3) prisoners
4) civilians |
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| basic principles Law of War |
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Definition
1) military necessity
2) proportionality
3) unnecessary suffering
4) distinction
must all be fulfilled |
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Definition
1) military consideration
2) Policy
3) Law |
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| Federal subject matter jurisdiction |
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Definition
| based on congressional statute, out of state |
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Definition
| congress can modify the supreme courts appellate jurisdiction |
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Definition
where defense is when interacts with plaintiff
where defendant conducts business
where defendant resides |
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Definition
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| not protected by freedom speech |
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Definition
| fighting words, obscenity, libel |
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| clear present danger test |
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Definition
| freedom of speech, fire in movie theater |
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| search under fourth amendment |
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Definition
| reasonable expectaion to privacy |
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Definition
civ- custody (cant leace)
mil- suspect of crime |
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| standard of proof article 15 |
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Definition
| beyond a reasonable doubt |
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Definition
| crime with one fewer element, or a less serious element |
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| summary court martial conducted by |
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Definition
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| defendant has the burden of production on the issue of unlawful command influence |
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Definition
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| prize authority gave the president the right to |
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Definition
defend the union from attack
cant initiate war
cant declare war
cant enter into treaty with ally without senate |
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| posse comitatus allows the US to |
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Definition
provide training, conduct surveillance, lend weapons
cant rescue hostages |
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Definition
not binding until ratified
void if they contravene a preemptory norm
assent to a treaty is subject to conditions
NOT in the event of a conflict treaty will trump federal statute |
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| sources of international law |
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Definition
international agreements
general principles of civilized nations
judicial decisions and opinions of scholars
UN
international customs maybe |
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Term
| UN security council only valid if |
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Definition
| 3/5 vote for it, including all 5 permanent members |
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| treaty superceeds inconsistent state law |
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Definition
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Definition
| subject matter of a treaty may extend beyond the enumerated powers of congress, |
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Definition
| sold guns to bolivia, violated us neutrality, us/treaty won out |
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Definition
| restrictions on the use of military force are imposed for policy or strategic reasons |
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| core principles of the law of war |
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Definition
proportionality
military necessity
distinction
unnecessary suffering |
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Term
| boumediene court suspends writ habeas corpus unconstitutionally because |
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Definition
| risk of erroneous detention |
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Term
| original law of warfare manual |
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Definition
| instructions for the governent of armies in the field, leiber |
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Definition
| federal courts had jurisdiction over the petitions brought from gitmo over wronful imprisonment, rulled they do not |
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Definition
| standing ROE from Joint Chief staffs |
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Definition
| principles of international law that cannot be derogated by treaty (views on torture, slavery, genocide) |
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Definition
| combatant staus review tribunal, if a detainee released from gitmo |
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Term
| 7 routes a commander can be brought to trial for law of war violation |
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Definition
1) commands the violation
2) ordered it
3) did not punish it
4) failed to control troops and prevent it
5) permits/acquiesces to a crime
7) passes on a legal order to his troops |
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Term
| when permitted to use lethal force |
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Definition
PID on
1) declared hostile
2) individual engaging in hostile act
3) exhibiting hostile intent |
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Term
| baseline treatment as a POW |
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Definition
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| GITMO is part of the US because |
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Definition
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Term
| persistent objector status |
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Definition
| state can ignore international law if it always objected to it |
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Term
| threat of force is not enough to use lethal force, threat must be |
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Definition
| imminent, against person or US property |
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