Title

Taking Liberties: The Personal Jurisdiction of Military Commissions

Document Type

Article

Comments

The most up-to-date version of this piece can be found in the Duke Law Scholarship

with the assistance of Duke law students Yaniv Adar, Margarita Clarens, Joshua Haber, Allison Hester-Haddad, David Maxted, James McDonald, George (‘Wes’) Quinton, Dennis Schmelzer, and Jeffrey Ward

Abstract

In 2006 Congress passed the Military Commissions Act (MCA) establishing a new set of military commissions, this time with Congressional sanction. At the present writing, a year and a half after passage of the MCA, the regime governing the personal jurisdiction of military commissions is as controversial as it is unclear. Without such an articulation of the relevant law, attempts to interpret the MCA’s jurisdictional provisions “consistently” with international law have been something of a muddle. The result has been not only significant disarray in the functioning and jurisprudence of the military commissions but, also, damage to the integrity of the law of war— including, particularly, prisoner-of-war (POW) protections.

The present article, in Part II, delineates the law of war governing the personal jurisdiction of military commissions. Part III parses the jurisdictional language of the MCA and argues that, properly construed, the personal jurisdictional framework of the MCA is both internally coherent and entirely consistent with the law of war. Part IV examines the relevant opinions rendered by the Guantanamo military commissions and the CMCR to date in the light of the law of war and the interpretation of the MCA delineated in Part III. Part V demonstrates that, in each case brought under the MCA to date, military commission jurisdiction has been exercised over a presumptively lawful combatant, in violation of both the MCA and the law of war—with resulting damage to the law of war, the integrity of American governance, and the reputation of the US internationally. Part VI concludes by suggesting a remedy that is as simple as it is critical.

Date of Authorship for this Version

8-9-2008

Keywords

military commissions, personal jurisdiction, law of war



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