If any of you have questions or comments about the model Klausur or my teaching style, just ask.
Like I’ve said, I’m not a diplomat, or a diplomatic person. I’m too rough and straight forward for the fine points of diplomacy. I don’t wish to seem unempathetic, I’m compassionate, and want you all to do well, though I try not to let it show too much.
About the definitions: yes, learn the meanings of the terms. I offer you the option to also present a German equivalent translation of the term as an Eselsbrücke but it is the definition I am after.
Why the German equivalent term(s) as an Eselsbrücke?
1) It boosts your confidence. Instead of staring in panic at something complicated in English, you have a Rettungslinie, your own word in your own language. Then you would calm down and answer the question, instead of freezing up or feeling panic.<
2) When you know the term in your own language, expressing it in English is easier.
3) Knowing the translation is professionally useful.
Not all terms have an exact equivalent, but usually there is one or at least a nearly equivalent term. Objektives Recht and Subjektives Recht in English don’t have exact translations for example. Subjektives Recht is an individual persons right. Objektives Recht is an abstract view of the law. So I would not ask that, obviously, as it is a test of U.S. constitutional law. Thing is… there are so many paralells and I *do* structure my course to paralell your course on Staatsorganisationsrecht and Grundrechte.
Regarding the structure of your answer: in German Staatsorganisationsrecht you should just about always answer
I. Zuläßigkeit
II. Begründetheit
This is not the Necessary form in a U.S. constitutional law exam *but I recommend it*. It’s logical, and structured, and logical structured arguments win out over unstructured and/or illogical arguments (law is a giant argument).
I. Procedural Admissibility
II. The Substantive Claim
So in our Gitmo example, the procedural issues would be
I.
*standing – is there an actual case or controversy of this particular plaintiff? (yes, there is).
*jurisdiction – does this court have the power to hear this case (yes, it does, because of the territorial principle).
II
*does the U.S. constitution apply to this case, i.e. could a claimant have a claim (yes) (extratterritoriality)
*does this particular person have a constitutional right? (yes) (non citizen)
Here, the plaintiff has a fundamental constitutional right, despite being a non-citizen, and it applies, despite being outside of U.S. territory. However, the claimants constitutional claim would be conditioned by the war powers of the president. The president could lawfully enter into the treaty, even without Senate ratification. The president, pursuant to his war powers could lawfully capture of even kill the plaintiff as an enemy combatant and/or international terrorist. Likewise, the U.S. president can lawfully enter into an intelligence sharing arangement.
The issues of German state organization law were not relevant. You could discuss them, and I do want you to think of them, and i would not take points away but unless you were to have said something brilliant and relevant a discussion of the German law aspects of the case would be no points (none lost nor gained).
So, the short answer is, although the plaintiff has a right to habeas corpus they would not be released: the U.S. government would be obligated to state whether they have the person, where the person is in custody, possibly also to give the person consular rights or even red cross visitation rights. However as a matter of U.S. domestic law the indefinite detention of an enemy combatant or international terrorist is likely constitutional if such be neccessary due to the exigences of an international armed conflict. Bear in mind, the right to know that a) this person b) is held by the U.S. c) at this location d) and that such person may well have consular rights such as diplomatic protection does have legal (as well as political and diplomatic) significance.
http://en.wikipedia.org/wiki/Boumediene_v._Bush
A thing to notice is that the klausur in this case directly paralelled one of the cases we looked at. That is no accident. In all your courses try to get inside your teachers head. What things are they likely to ask? Yes, my Klausur is likely to reflect variants on the cases we examine in class. I don’t promise that. You might also think of current events, which in my class certainly are relevant, e.g.
Snowden / Assange /NSA
Gay marriage
Arab spring
? none of the visiting lectures I point out to you in class has had any issues I could examine, though of course if I think other researchers have great ideas which are relevant for our course I would draw in them.
Ok? Any questions? Just ask!