Some Observations on the Future of U.S. Military Commissions

21 Pages Posted: 22 Dec 2009

See all articles by Michael A. Newton

Michael A. Newton

Vanderbilt University - Law School

Date Written: December 22, 2009


The Obama Administration confronts many of the same practical and legal complexities that interagency experts debated in the fall of 2001. Military commissions remain a valid, if unwieldy, tool to be used at the discretion of a Commander-in-Chief. Refinement of the commission procedures has consumed thousands of legal hours within the Department of Defense, as well as a significant share of the Supreme Court docket. In practice, the military commissions have not been the charade of justice created by an overpowerful and unaccountable chief executive that critics predicted. In light of the permissive structure of U.S. statutes and the framework of international precedent, there is no requirement for complete consistency between the procedures applicable to military commissions and Article III courts. The synergistic efforts of the judicial, legislative, and executive branches makes the current military commissions lawful and without question “established by law” as required by international norms.

Keywords: military commissions, combatants, terrorist, war crimes, jurisdiction, Common Article 3, material support

Suggested Citation

Newton, Mike A., Some Observations on the Future of U.S. Military Commissions (December 22, 2009). Case Western Reserve Journal of International Law, Vol. 42, p. 151, 2009, Vanderbilt Public Law Research Paper No. 09-31, Available at SSRN:

Mike A. Newton (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
(615) 322-2912 (Phone)


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