Law Commons^™

The Constitution And National Security, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

A Short Comment On Current Detainee Policy: One Step Forward And Two Steps Back, Kyndra Miller Rotunda

ConLawNOW

During the Presidential Campaign, President Obama promised to close Guantanamo Bay and to abandon Military Commissions. Shortly after taking office, he halted Military Commissions that were then underway, in order to explore other alternatives. Nearly three years later, Guantanamo Bay remains opens, and President Obama has recently resumed Military Commissions.

With the exception of a lone amendment to the Military Commissions Act, the procedures governing Military Commissions under President Obama and those under President Bush are virtually indistinguishable.

What is distinguishable is that now, under President Obama, many detainees will receive no procedural protections under the Military Commissions Act, but …

Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.

The Constitution And National Security, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Guantánamo Military Commissions: “Judicial Approval And Guidance”, Christina Frohock

Articles

No abstract provided.

Obama's Failed Attempt To Close Gitmo: Why Executive Orders Can't Bring About Systemic Change, Erin B. Corcoran

Law Faculty Scholarship

No abstract provided.

Hamdan As An Assertion Of Judicial Power, Jana B. Singer

Faculty Scholarship

In Hamdan v Rumsfeld, the Supreme Court rebuffed the Bush administration’s initial attempt to use Military Commissions created by Executive Order to try detainees held at Guantanamo Bay. The Court ruled that the President, acting alone, lacked the authority to employ the Commissions because their structure and procedure violated both the Uniform Code of Military Justice and the Geneva Conventions. Most academic commentators have viewed the Hamdan decision as primarily about the limits of executive power. On this view, the central constitutional problem in Hamdan was that the Executive had acted unilaterally in an area where the Constitution required the …

The Rule Of Law And The Military Commission, Stephen J. Ellmann

Articles & Chapters

This essay examines the underlying foundations of the Supreme Court's decision in Hamdan v. Rumsfeld. After laying out many of the features of the conflicting positions taken by the majority and dissents in the case, the article argues that the majority's judgment was by no means determined by the plain meaning of the statutory provisions at issue, nor even by the Steel Seizure framework of overlapping zones of executive and legislative power. Instead, three factors deserve special emphasis. The first is the Court's effort to protect, and catalyze, Congressional authority. The second is the Court's understanding of its own role …

Chasing 'Enemy Combatants' And Circumventing International Law: A License For Sanctioned Abuse, Peter J. Honigsberg

Peter J Honigsberg

In 1944, in Korematsu v. United States, the Supreme Court made a major error in judgment. It ruled that the executive may forcibly remove over 110,000 Japanese Americans from their homes and relocate them in American detention camps. In two recent Supreme Court cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the court made similar errors in judgment by accepting the administration's term "enemy combatant." The Supreme Court's errors were compounded when Congress passed the Military Commissions Act of 2006 in October, 2006, statutorily defining the term enemy combatant for the first time. By acknowledging the term enemy combatant, the …

Life, Liberty, And The Pursuit Of Terrorists: An In-Depth Analysis Of The Government's Right To Classify United States Citizens Suspected Of Terrorism As Enemy Combatants And Try Those Enemy Combatants By Military Comission, Amanda Schaffer

Fordham Urban Law Journal

This Comment explores the government's right to treat citizens as enemy combatants and whether their trials should be by military commissions or by the non-military criminal justice system. It gives background information and explains the source of the government's right to determine enemy combatant status and to use military commissions. This Comment also describes the distinctions between a military trial and a regular criminal trial and explains the status of two cases regarding American citizens declared to be enemy combatants. The Comment goes on to explain why the government wants to use military commissions to try terrorists and the advantages …

What To Do With Bin Laden And Al Qaeda Terrorists?: A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission.

The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly …

Antiterrorism Military Commissions: Courting Illegality, Jordan J. Paust

Michigan Journal of International Law

On November 13, 2001, President Bush issued a sweeping and highly controversial Military Order for the purpose of creating military commissions with exclusive jurisdiction to try certain designated foreign nationals "for violations of the laws of war and other applicable laws" relevant to any prior or future "acts of international terrorism." The Order reaches far beyond the congressional authorization given the President "to use all necessary and appropriate force," including "use of the United States Armed Forces," against those involved in the September 11th attack "in order to prevent any future acts of international terrorism against the United States by …