The Laws of War as a Constitutional Limit on Military Jurisdiction

It is impossible to have a meaningful debate over whether a civilian court or a military commission is 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 their cases have managed to produce a decision on the merits from any court higher than the Court of 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. … [T]he time has long since passed for a careful explication of the issues, the relevant precedents, and the most likely answers.

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