Abstract

http://ssrn.com/abstract=299428
 
 

Citations (4)



 
 

Footnotes (186)



 


 



Waging War, Deciding Guilt: Trying the Constitutionality of the Military Tribunals


Neal Kumar Katyal


Georgetown University Law Center

Laurence H. Tribe


Harvard Law School


Yale Law Journal, Vol. 111, No. 6, pp. 101-152, April 2002

Abstract:     
In this paper, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today and charts a dangerous course for the future. Our Constitution's structure mandates that fundamental choices, in times of peace as well as war, are to be made not by one person or one branch, but by the three branches of government working together. Approval by Congress is a necessary, but by no means sufficient, precondition before the tribunals can be entertained as constitutional. We also explain why the present circumstances differ decisively from those at issue in the Supreme Court's body of decisions regarding military tribunals during the Civil War and World War II. We further explain why the specter of civilian habeas review will necessitate legislative involvement, and detail the significant equal protection problem with the Military Order.

Number of Pages in PDF File: 53

Accepted Paper Series





Download This Paper

Date posted: February 28, 2002  

Suggested Citation

Katyal, Neal Kumar and Tribe, Laurence H., Waging War, Deciding Guilt: Trying the Constitutionality of the Military Tribunals. Yale Law Journal, Vol. 111, No. 6, pp. 101-152, April 2002. Available at SSRN: http://ssrn.com/abstract=299428 or http://dx.doi.org/10.2139/ssrn.299428

Contact Information

Neal K. Katyal (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9807 (Phone)
202-662-9410 (Fax)
Laurence H. Tribe
Harvard Law School ( email )
1575 Massachusetts
Hauser 418
Cambridge, MA 02138
United States
Feedback to SSRN


Paper statistics
Abstract Views: 4,966
Downloads: 728
Download Rank: 18,814
Citations:  4
Footnotes:  186

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.313 seconds