Please provide brief clear definition of the following terms – one to three lines per term. You may provide the German equivalent of each of the terms which follows. The terms presented with a slash are synonyms / mean the same thing (or very nearly so).
1. Operative Part / Holding
2. Political question doctrine
3. Quorum
4. Resolution / Declaration
5. Stare Decisis / Rule of precedent
6. Writ of certiorari
7. Elastic clause / necessary and proper clause
8. Standing Doctrine / Case or Controversy Doctrine
9. Takings clause
0. Vested Right
Mila Milovskaya, known hereafter as M., is a protestor in Urania. Urania is a developing economy in Eastern Europe suffering from corruption. During protests on the May Day square in downtown Kive, the capital of Urania, T. is arrested by the Uranian riot police, known as Bekruit, along with several other protestors. The group of protestors is taken to a woods, where they are all shot. Most of them die. However, M. was only wounded. M. survived the shooting by pretending to be dead. She makes her way to the U.S. Embassy. There she is provided a new U.S. diplomatic passport in the name of Mary McPhereson and is succesfully extracted from Urania. “Mary” (M.) is resettled in the U.S. Her anonymous identity as “Mary McPhereson” is retained. All U.S. records of M’s prior Uranian identity are retained as Official State Secret (Top Secret, NOFOR). The U.S. governmint offers a bounty (=Kopfgeld) for any information leading to the arrest and imprisonment of any of the perpetrators of the crime of mass murder in the Uranian woods.<
The Independent Trucking Company (ITC), an unincorporated association (=GbR), is a private military contractor (PMC). ITC decides to try to collect the bounty. No member of ITC is a U.S. citizen. Suspecting that Viktor Boutch, a Russian national, is one of the perpetrators, ITC kidnaps (=Entführung) Viktor from Tieland, a country in Southeast Asia. This abduction is a clear violation of Tieland’s domestic law as well as of international law. ITC brings Viktor to Liberty City, a U.S. port.
The U.S. Federal Bureau of Investigation (^BKA) takes custody of Viktor at the airport. The FBI then runs a biometric analysis on Viktor (fingerprints, retina scan, DNA database blood check) and concludes that Viktor is indeed a criminal suspect in the murder at May Day Square, and pays ITC the bounty.
At trial, M. testifies. When asked to reveal her true identity, M. refuses. The U.S. also refuses to divulge M’s. identity.
The U.S. “Organized Crime Control act of 1966, 13 United States Code 211” provides in its entirety, that
“Preamble: Whereas organized crime threatens the security of the nation, the Congress of the United States hereby enacts this law to protect material witnesses to serious crimes.”
“Section 1: The identity of a material witness to a serious crime may be kept anonymous.”
“Section 2: The material witness to a serious crime may be given a new identity.”
“Section 3: The U.S. asserts jurisdiction over serious crimes occurring outside U.S. territory where the victim is a U.S. citizen.”
In the legislative history of 13 U.S.C. 211, it is clear that “serious crimes” include murder, abduction, and torture.
Viktor wishes to argue that his arrest and prosecution are violations of the U.S. constitutional guaranties of the rights of the criminal to due process of law. How should he best argue? What result?
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Briefly
1) His abduction is no bar to the prosecution. Yes, it’s illegal under Uranian and international law. But the remedy is Urania’s not Boutch’s.
2) The fundamental right of confrontation as part of the criminals’ rights of self defence are protected in the Vth Amendment (also in the rights of privacy in the IVth Amendment). So it’s the state interest in “national security” versus the private right to a fair trial. Very briefly international law permits anonymized witnesses but this is a more contentious issue in U.S. law: you could have plausibly argued either way, that the anonymous testimony is permissible OR a violation of the U.S. federal constitutions rights of the acused. I purposely chose a contested issue which could be argued either way, so that you would see the issue, be challenged to think creatively, but not überfordert.
The PMC is an example of the state action doctrine. The PMC did not violate U.S. law and even if an instance of U.S. state power was well within the executive branches broad ranging foreign policy competence.
3. Nowhere did the exam state that Boutch was employed in any capacity by Urania.
You all seem to have done well, I will try to grade them as rapidly as possible.
The definitions were straight forward. But…
who noticed they followed the word order:
O
P
Q
R
S
WESTV
Schwarzer Kanal etwa?
I don’t plan to give a detailed answer beyond 1) the abduction is no bar to the prosecution 2) the use of anonymous testimony definitely infringes on the criminal’s rights to self defence and thus must meet the test of strictu sensu proportionality – it must be strictly necessary, there must be no less restrictive means to attain the legitimate and, and the law must serve a compelling state interest. It could be argued either way on this case.