May 6, 2011


A Predicament Of His Own Making (Owen Fiss, 5/03/11, Boston Review of Books)

In the past, military commissions have been used on the battlefield to try belligerents caught red-handed and accused of war crimes. In such circumstances they have been allowed as tribunals of necessity. The 2009 Act and Bush’s earlier measures transformed them into tribunals of convenience, for the statutory changes allowed military commissions to be used for trials at Guantánamo—far removed from any battlefield—for persons held years for on end, in some cases almost a decade.

Given his National Archives speech and his sponsorship of the Military Commissions Act of 2009, Obama is in no position to complain of the threat that the use of military commissions in these circumstances poses to due process. Obama’s only remaining objection to Congress’s actions is a rather limp separation of powers claim—that the December 2010 legislation barring the transfer of Guantánamo prisoners to the United States constituted an improper interference with executive prerogatives. However, if we assume, as Obama posits, that due process does not bar the use of military commissions, it is not clear why the choice of tribunal—federal civilian court versus military commission—should be entrusted to the exclusive discretion of the attorney general. After all, Congress created both tribunals.

...hey, Mr. Fiss, in the past what form of tribunals were typically used for belligerents once we took them off the battlefield?

Posted by at May 6, 2011 5:55 AM

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