Judicial Review and the Military Commissions Act: On Striking the Right Balance

Abstract

Hamdan v. Rumsfeld seemed a promising example of a special form of judicial role. Abstaining from deploying its ultimate power to judge the constitutionality of an action of a political branch, the United States Supreme Court used statutory construction to give a strong nudge in a direction favorable to human rights. It negated a questionable and controversial policy—President George W. Bush’s unilateral establishment of military commissions to try terrorist suspects by means of reduced procedures—and essentially remanded the matter to Congress. The initial fruits of that remand, the Military Commissions Act (MCA), came as a disappointment. The Act cuts back on judicial review of the treatment of prisoners at Guantánamo and other U.S. detention sites overseas; it limits certain key protections available to the accused in a military commission proceeding, as compared to courts-martial; and it takes a crabbed view of the requirements of common Article 3 of the Geneva Conventions—at least as applied to the actions of U.S. agents. Nonetheless, further judicial and congressional reconsideration is certainly possible—and highly desirable.

Diminishing the Value of War Crimes Prosecutions: a View of the Guantanamo Military Commissions from the Perspective of International Criminal Law

“…114 The commissions' improvised nature infects nearly every aspect of their proceedings, undermining their integrity and fairness. 115 International criminal law has historically relied on the creation of new tribunals to prosecute offences, from the IMT at Nuremberg to ad hoc tribunals (ICTY and ICTR), hybrid tribunals (such as the Extraordinary Chambers in the Courts of Cambodia and Special Tribunal for Lebanon), and now a permanent criminal court at The Hague. These tribunals are predicated on the assumption that existing domestic courts are incapable or unwilling to prosecute offences that the international community deems sufficiently grave to warrant judgment and punishment-an assumption best embodied by the Rome Statute's complementarity principle.…”