Crafting Military Commissions Post-Hamdan: The Military Commissions Act of 2006

Abstract

In June 2006, the Supreme Court invalidated President Bush's military commission rules in Hamdan v. Rumsfeld. The Court held that the military commissions fell outside of the military court system established by Congress, and ruled the commissions unconstitutional as applied to both citizens and non-citizens. Congress responded with the Military Commissions Act of 2006, new legislation to establish military commissions. The Act fails to balance properly the Court's fairness requirements with the extraordinary demands placed on the laws of war by terrorism.

This Note summarizes whether terrorist attacks implicate the laws of war, what protections are due parties detained in the War on Terror, and concludes that only the laws applicable to non-international armed conflicts govern Al Qaeda's attacks. After examining Justice Kennedy's safe harbor in his Hamdan concurrence, the Note considers the procedures of the Military Commissions Act of 2006. In light of the Court's decision in Hamdan, and provisions of the Geneva Conventions that it incorporates, the Military Commissions Act fails to uphold the fairness standards expressed by the Court. The Act would require significant revisions before it could withstand constitutional scrutiny, even in wartime.

Keywords: detention, Hamdan, Hamdi, UCMJ, military commissions, Guantanamo, Iraq, Geneva, Geneva Conventions, Military Commissions Act

JEL Classification: K19, K1, K3, K33, K14, K39, K40, K41