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Thursday, June 29, 2006
MILITARY COMMISSIONS DECLARED ILLEGAL
So once again a long delay between posts. I'm sure everyone reading this blog already knows that the Supreme Court struck down the Military Tribunals. Specifically, the opinion says that the Congressional AUMF did not authorize the commissions, and also found that the Commission procedures established by M.C.O. 1 fell short of the requirements imposed by Article 36 of the UCMJ.
If I might hazard a personal opinion, I think the Court got the answer right in this case. Article 36 allows the President to set the rules of procedure for tribunals, but those rules "may not be contrary to or inconsistent with" the U.C.M.J. Theoretically, I am more interested in the broader constitutional question - - under Ex Parte Quirin, the government can create military commissions to try people for violation of the laws of war, but Congress has to authorize it. And, I agree that Art. 36 imposes at least some restrictions on the President's procedural rules. In Quirin, the Court wasn't sure whether Congress really could restrict the Presidents power in that way and sort of punted. (317 U.S. 1, 47-48) ("We need not inquire whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents. For the Court is unanimous in its conclusion that the Articles in question could not at any stage of the proceedings afford any basis for issuing the writ [of habeas corpus]. But a majority of the full Court are not agreed on the appropriate grounds for decision").
Apparently, Hamdan says they can. And did.
A few of the many commentators:
I enjoyed looking through those links and scanning the syllabus of the opinion. Of course, that's 30-45 minutes I should've spent working. I have to make the time up somehow, probably during the upcoming long weekend. No matter how much I complained about law school, it was much easier to blog.
If I might hazard a personal opinion, I think the Court got the answer right in this case. Article 36 allows the President to set the rules of procedure for tribunals, but those rules "may not be contrary to or inconsistent with" the U.C.M.J. Theoretically, I am more interested in the broader constitutional question - - under Ex Parte Quirin, the government can create military commissions to try people for violation of the laws of war, but Congress has to authorize it. And, I agree that Art. 36 imposes at least some restrictions on the President's procedural rules. In Quirin, the Court wasn't sure whether Congress really could restrict the Presidents power in that way and sort of punted. (317 U.S. 1, 47-48) ("We need not inquire whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents. For the Court is unanimous in its conclusion that the Articles in question could not at any stage of the proceedings afford any basis for issuing the writ [of habeas corpus]. But a majority of the full Court are not agreed on the appropriate grounds for decision").
Apparently, Hamdan says they can. And did.
A few of the many commentators:
- Marty Lederman of Akin Gump and SCOTUSblog
- Orin Kerr's comment and a good summary.
- Stuart Benjamin at the Volokh Conspiracy. There are always colorful commentators at the VC, and Prof. Benjamin's post is no exception.
I enjoyed looking through those links and scanning the syllabus of the opinion. Of course, that's 30-45 minutes I should've spent working. I have to make the time up somehow, probably during the upcoming long weekend. No matter how much I complained about law school, it was much easier to blog.
