Document Type

Article

Publication Date

3-2007

Keywords

Military Commissions Act of 2006

Disciplines

Military, War, and Peace

Abstract

In three decisions in 2004 and 2006, the Supreme Court of the United States rejected the sweeping claims by President Bush that his role as Commander in Chief entitled him to detain persons indefinitely and, if he chose, to subject them to war crimes trials before military commissions that did not have all of the procedural protections of courts martial. The Court's rulings, however, left open the possibility that, notwithstanding the treaty obligations of the United States under the Geneva Conventions, Congress could authorize the President to take the steps that he could not take unilaterally. In the Military Commissions Act (MCA) of 2006, Congress did just that. However, despite its title, the MCA does far more than authorize military commissions. Most significantly, it eliminates the statutory right of aliens declared by the government to be unlawful enemy combatants and detained indefinitely on that basis, to seek a writ of habeas corpus from a federal court. To be sure, the MCA provides some right of access to federal court for persons convicted of war crimes by military commissions or found to be unlawful enemy combatants by a military combatant status review tribunal or equivalent body, but even then, it severely curtails opportunities for judicial relief. In this and other respects, the MCA purports to confer rights that, upon close inspection, prove illusory. For example, it uses the language of the Geneva Conventions, even while forbidding courts to look to international and foreign sources to construe that language. The MCA is, more broadly, an exercise in misdirection. It is, in a word, Orwellian .

Publication Citation

Michael C. Dorf, "The Orwellian Military Commissions Act of 2006", 5 Journal of International Criminal Justice (2007)

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