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Judicial Review and the MCA: On Striking the Right Balance

David A. Martin, University of Virginia School of Law

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Forthcoming 2007: American Journal of International Law, vol. 101

Abstract

Hamdan v. Rumsfeld seemed a promising example of a special form of judicial role. Abstaining from deploying its ultimate power to judge the constitutionality of an action of a political branch, the U.S. Supreme Court used statutory construction to give a strong nudge in a direction favorable to human rights. It negated a questionable and controversial policy – President Bush’s unilateral establishment of military commissions to try terrorist suspects using reduced procedures – and essentially remanded the matter to Congress. The initial fruits of that remand, the Military Commissions Act (MCA), came as a disappointment. The Act cuts back on judicial review of the treatment of prisoners at Guantanamo and at other U.S. detention sites overseas, it limits certain key protections available to the accused in a military commission proceeding, as compared to courts martial, and it takes a crabbed view of the requirements of common article 3 of the Geneva Conventions – at least as applied to the actions of U.S. agents. Nonetheless, further judicial and congressional reconsideration is certainly possible – and highly desirable.

I analyze here the contours of Hamdan’s remand to Congress, the strengths and weaknesses of that judicial technique, and the political dynamics that led to the MCA. I call attention to certain important gains to rights protections that the present legislation represents, for it does affirm a judicial role in two deeply important arenas from which the Bush administration initially sought to exclude the federal courts entirely – military commission trials and the process of designating enemy combatants for indefinite detention. But there are still lingering deficiencies, some of considerable significance. I conclude by exploring a few questions that must be resolved in order to yield an appropriate judicial role regarding detainees in the struggle against terrorism. Though most of my discussion focuses on U.S. law and practice, the same tension between effective military response to terrorism and the need for sound judicial checks and balances must be worked out under international human rights provisions.

Subject Area

Human Rights Law, Immigration Law, International Law, Public Law and Legal Theory

Recommended Citation

David A. Martin, "Judicial Review and the MCA: On Striking the Right Balance" (June 2007). University of Virginia Legal Working Paper Series. University of Virginia Public Law and Legal Theory Working Paper Series. Working Paper 70.
http://law.bepress.com/uvalwps/uva_publiclaw/art70

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