Questioning the Jurisdictional Moorings of the Military Commission Act

Abstract:     
Of the many controversial legal questions generated by the passage of the Military Commission Act of 2006, perhaps the most fundamental is that of jurisdiction. This question has lingered beneath the surface of the legitimacy of the use of these tribunals to try alleged al Qaeda operatives since they were first created by President Bush. Unfortunately - or for advocates of the use of these tribunals perhaps fortunately - the seminal challenge to the validity of the Military Commission, Hamdan v. Rumsfeld, was resolved in favor of the Petitioner without reaching this underlying question. However, the rapid response by Congress to provide a statutory foundation for resurrecting this means to try detainees associated with the Global War on Terror once again raises this difficult but critical question related to the legitimacy of such trials. This Essay will briefly address why this author believes the scope of jurisdiction established by the MCA exceeds the bounds of legitimate use of such tribunals.

Number of Pages in PDF File: 10

Keywords: Military Commissions, Military Tribunals, UCMJ, Detainees, Military Commission Act, Law of War, Law of Armed Conflict, Terrorism, International Law

JEL Classification: K33, K10, K40, K41

Accepted Paper Series