The Value of the Military Commissions Act as Non-Judicial Precedent in the Context of Litigation Over National Security Policymaking

Abstract

At this writing, President Barack Obama has authorized the resumption of military commissions at Guantanamo Bay, for those detainees eligible for trial before the commissions. By the time this essay is published, the war on terror will be entering its tenth year. By any reasonable measure, the emergency has ended, and it seems an appropriate time to examine the way in which the three branches of the federal government have responded to the terrorist threat. Here, we focus on the extent to which Congress can and should play a role in directing the war and national security issues related to terrorism. We have little doubt that the constitutional text allocates national security power between the legislative and executive branches. The question is whether Congress can wield that power in a meaningful way. We contend not just that Congress can do so, but that courts should invest particular Congressional actions with some presumptive weight when addressing disputes over the breadth of the executive’s national security powers. This is, to be sure, a modest point, but we should not overlook any potential lessons that can be learned from the legal battles over the conduct of the war on terror.

Keywords: Separationb of powers, national security, war on terror, military commissions, executive power, precedent