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The Laws of War as a Constitutional Limit on Military Jurisdiction

Stephen I. Vladeck
American University – Washington College of Law
Journal of National Security & Policy, Forthcoming
American University Washington College of Law Research Paper No. 2010-27

Nine years, one Supreme Court decision, two statutes, and a veritable mountain of popular and academic discourse after President Bush’s November 2001 Executive Order creating military commissions to try non-citizen terrorism suspects, we have made shockingly little progress in resolving the myriad constitutional questions that such tribunals raise. What’s more, these questions have only become that much more pressing over time, (1) as Congress has stepped in to provide the authorization that the Supreme Court in Hamdan found to be lacking (thereby squarely raising some of the underlying constitutional questions); (2) as the debate over whether civilian courts or military tribunals are a more appropriate forum for trying the so-called “9/11 defendants” has raged both in public circles and behind the scenes within the current Administration; (3) as the nominal defendants before the military commissions have languished in various states of legal limbo; and (4) most recently, as the Supreme Court has upheld Congress’s power to broadly prohibit the provision of “material support” to designated foreign terrorist organizations, an offense that Congress has also made triable before a military commission.
To put it succinctly, it is impossible to have a meaningful debate over whether civilian courts or military commissions are a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders. And yet, although a number of defendants have attempted to challenge the jurisdiction of the military commissions – especially under the MCA – none of these cases have managed to produce a decision on the merits from any court higher than the Court for Military Commission Review (CMCR). Instead, the federal courts have generally relied on “abstention” doctrine, holding that challenges to the commissions, including to their jurisdiction, can – and should – be resolved on post-conviction appeal. That’s not to say that the Article III courts won’t have the last word; they may well, yet. But in the interim, the time has long since passed for a careful explication of the issues, the relevant precedents, and the most likely answers.
This article attempts to provide a thorough introduction to – and analysis of – the constitutional limits on the jurisdiction of military commissions. By “jurisdiction,” I mean two distinct types of authority: Jurisdiction over the offense, and jurisdiction over the offender. The former goes to whether the military court has the authority to try the charged offense; the latter goes to whether the military court has the authority to try the charged defendant. And whereas there are some precedents on the scope of these two species of jurisdiction in the context of military commissions, the law is far better settled in the closely analogous context of courts-martial, where similar issues routinely arise.
Drawing on the court-martial decisions for support, this article concludes that the Constitution does meaningfully constrain the ability of Congress to subject particular offenders and offenses to trial by military commission. In particular, under the Supreme Court’s own jurisprudence, the Constitution only authorizes the exercise of military jurisdiction over servicemembers or "offenses committed by enemy belligerents against the law of war." And although Congress is entitled to some latitude in giving content to the laws of war, there is simply no question that the constitutionality of the Military Commissions Acts of 2006 and 2009 is not settled by Congress’s self-serving ipse dixit in each statute that all of the offenses are war crimes. Even if Article I tolerates such a naked arrogation of power, the jury-trial protections of Article III and the Fifth and Sixth Amendments do not – and never have.

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