Still Unlawful: The Obama Military Commissions, Supreme Court Holdings, and Deviant Dicta in the D.C. Circuit

Abstract:     
It is the primary purpose of this article to demonstrate why the Obama military commissions will not be lawful fora for prosecution despite President Obama’s relatively recent embrace of the military commission process. First, the Obama military commissions are not regularly constituted or previously established in accordance with pre-existing laws and, therefore, they are without jurisdiction under relevant international laws. Second, they are not constituted within a theater of war or war-related occupied territory and, therefore, they are without lawful jurisdiction. Third, their use would violate several multilateral and bilateral treaties that require equal protection of the law and equality of treatment more generally and, therefore, they are without lawful power or authority under constitutionally moored supreme laws of the United States that are binding on the President and all members of the Executive Branch, including U.S. military personnel. Fourth, they will predictably use certain procedures that are violative of or highly problematic under relevant international law. Finally, the article addresses shocking errors and deviant dicta in D.C. Circuit opinions in Al-Bihani v. Obama.

Number of Pages in PDF File: 36

Keywords: Al-Bihani, Charming Betsy, equal protection, FCN, Guantanamo, GTMO, Hamdan, international law, last in time, law of war, MCA, military commission, Obama, President bound, procedure, treaty, war crime

Accepted Paper Series