Antiterrorism Military Commissions: Courting Illegality

29 Pages Posted: 14 Jun 2014

See all articles by Jordan J. Paust

Jordan J. Paust

University of Houston Law Center

Date Written: 2001


This article identified several violations of international law set up by a November 2001 order of President Bush regarding military commissions at Guantanamo Bay, Cuba. Prosecution before the tribunals contemplated would have violated several laws of war, human rights laws, and bilateral treaties guaranteeing equality of treatment. Procedures chosen were especially lacking in the semblance of legality and were strikingly inconsistent with those required for general courts-martial and federal district courts. The military commissions were also not properly constituted. This article was cited by the Supreme Court in Hamdan (548 U.S. 557, 617 (2006)). Some of the same improprieties remain with the Obama military commissions, as documented in a subsequent article.

Keywords: alien, Bush, Congress, discrimination, due process, equal protection, evidence, FRCP, Guantanamo, Geneva Convention, Hamdan, human right, ICCPR, independent tribunal, judicial review, law of war, procedure, prosecution, terrorism, war crime, military commission

Suggested Citation

Paust, Jordan J., Antiterrorism Military Commissions: Courting Illegality (2001). 23 Michigan Journal of International Law 1 (2001), U of Houston Law Center No. 2014-A-47, Available at SSRN:

Jordan J. Paust (Contact Author)

University of Houston Law Center ( email )

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