executive power, national security policy, detainees, military commissions, Geneva Conventions
In Hamdan v Rumsfeld, the Supreme Court rebuffed the Bush administration’s initial attempt to use Military Commissions created by Executive Order to try detainees held at Guantanamo Bay. The Court ruled that the President, acting alone, lacked the authority to employ the Commissions because their structure and procedure violated both the Uniform Code of Military Justice and the Geneva Conventions. Most academic commentators have viewed the Hamdan decision as primarily about the limits of executive power. On this view, the central constitutional problem in Hamdan was that the Executive had acted unilaterally in an area where the Constitution required the involvement – or at least the acquiescence – of both political branches. This Essay argues that, while Congressional control of executive power is an important theme in Hamdan, the decision also constitutes a strong assertion of judicial power. In particular, the Court’s analysis suggests that the judicial branch has a vital and independent role to play in striking the appropriate balance between national security and individual liberties.
65 Maryland Law Review 82 (2007).