The Military Commissions Act, Habeas Corpus, and the Geneva Conventions
Curtis A. Bradley
Duke University School of Law
American Journal of International Law, Vol. 101, 2007
Duke Law School Legal Studies Paper No. 172
This essay considers the constitutionality of both the habeas corpus and Geneva Convention provisions in the Military Commissions Act of 2006 (MCA). The MCA purports to preclude federal court jurisdiction over habeas corpus applications filed by detainees in the war on terrorism, providing them instead with D.C. Circuit review of their status determinations and military commission judgments. The MCA also has a number of provisions that either restrict judicial application of the Geneva Conventions or purport to interpret those Conventions. With respect to the habeas restriction, the essay concludes that the Supreme Court is likely to find that the detainees at the Guantánamo Bay naval base have a constitutional right of habeas corpus review, and that this right has not been validly suspended by the MCA. Nevertheless, depending on how they are interpreted, the provisions allowing for D.C. Circuit review could suffice to preserve the constitutional right. With respect to the MCA's Geneva Convention provisions, the essay concludes that Congress has the authority to decide that the United States will implement the Conventions through military regulations, congressional oversight of the military, criminal law, and diplomatic relations rather than through private judicial enforcement, and that a fair reading of its intent in enacting the MCA is that it has exercised this authority. In addition, while the provisions in the MCA that set forth particular interpretations of the Geneva Conventions are unlikely to be treated by courts as dispositive, the essay concludes that courts should give substantial deference to Congress's and the Executive's shared interpretation of the Conventions.
Number of Pages in PDF File: 24
Keywords: military commissions, habeas corpus, geneva conventions, self-executionAccepted Paper Series
Date posted: June 14, 2007 ; Last revised: October 7, 2007
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