Law Commons^™

Detentions, Military Commissions, Terrorism And Domestic Case Precedent, Carl W. Tobias

Law Faculty Publications

Laura Dickinson's recent article in this journal substantially improves appreciation of how the United States has detained suspects and instituted military commissions as well as of the roles played by the controversial procedure and tribunals when fighting terrorism. She meticulously traces how detentions and the commissions evolved, trenchantly criticizes them, and persuasively shows international tribunals' comparative advantage. Dickinson accords relevant domestic case precedent a somewhat laconic analysis, however. For example, she briefly mentions separation-of-powers concerns and Supreme Court opinions that detentions and military commissions implicate while rather tersely assessing Ex parte Quirin, the Second World War decision on which …

Quirin Revisited, Carl W. Tobias

Law Faculty Publications

Six decades ago, the U.S. Supreme Court decided Ex parte Quirin, in which the Justices determined that President Franklin Delano Roosevelt possessed the requisite constitutional authority to institute and use a military commission.

On November 13, 2001, President George W. Bush promulgated an Executive Order (Bush Order) that authorized the establishment and application of military commissions as well as purported to eliminate whatever jurisdiction federal courts might have by statute and to deny federal court access to individuals prosecuted or detained for terrorism. The Bush administration substantially premised that the Order and jurisdiction-stripping proviso on Ex parte Quirin. It has …