The Military Commissions Act, Habeas Corpus, and the Geneva Conventions

Many commentators argued that a central problem with the government’s actions after the attacks of September 11, 2001, was executive unilateralism. For example, in criticizing President George W. Bush’s initial effort to establish military commissions to try terrorists, Professors Neal Katyal and Laurence Tribe argued that, “in the absence of an emergency that threatens truly irreparable damage to the nation or its Constitution, that Constitution’s text, structure, and logic demand approval by Congress if life, liberty, or property are to be significantly curtailed or abridged.” These commentators therefore invited the courts to play a “democracy-forcing” role to prompt greater congressional participation, through, in particular, the application of “clear statement” requirements. In Hamdan v. Rumsfeld , the Supreme Court accepted this invitation. In holding that the military commission system that President Bush had established to try terrorist detainees was invalid, the Court relied on what it believed to be restrictions in the Uniform Code of Militaryjustice (U.C.M.J.), a statute that is of course subject to amendment by Congress. Thus, as Justice Stephen Breyer and other Justices noted in a concurrence, “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.”

Constitutionality · Geneva Conventions · Habeas corpus · Human rights · International humanitarian law · Judicial review · Jurisdiction · Political science · Supreme court · International Law and Aviation · International Law and Human Rights · Law · Torture, Ethics, and Law

• Judicial Review and the Military Commissions Act

  Open Access•David Martin, David A Martin•American Journal of International…•2007

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• The evolution of international law in light of the ‘global War on Terror’

  Open Access•Eric A Heinze, Eric Heinze•Review of International Studies•2011

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• The Military Commissions Act, the Geneva Conventions, and the Courts

  Open Access•Carlos Manuel Vázquez•American Journal of International…•2007

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