"Closing Guantánamo: President Obama Must Do It Right This Time," National Law Journal, July 1, 2013, p. 42. On his second day in office, President Obama signed an executive order to close the detention facility at the naval base "as soon as practicable, and no later than 1 year from the date of this order." Before issuing that order, he needed to first meet with lawmakers, learn about their concerns, fashion a reasonable compromise, and locate a secure facility on the maintain to house the detainees. He failed to take any of those steps. If he had reached out to Congress to create a legislative framework for the closure, progress was possible. Obama's executive order was the type of unilateral action that backfired on George W. Bush.
“To Have and To Hold: Those in U.S. custody deserve reliable evidence,” Legal Times, March 16, 2009, pp. 38-39. After the 9/11 terrorist Attacks, the Bush administration indefinitely detained U.S. citizens and aliens without charging them with crimes, providing legal assistance, or granting a hearing. Their detention depended on confidential information withheld from them. A similar situation occurred in 1948, when Ellen Knauff arrived in the New York harbor to join her husband’s family. She was taken to Ellis Island and held there for three years. Confidential information supposedly indicated that her admission would be “prejudicial” to the United States. Eventually she was allowed to enter the country after members of Congress, newspapers, and some federal judges protested the government’s policy.
Review of Honor Bound: Inside the Guantanamo Trials by Kyndra Miller Rotunda (Durham: Carolina Academic Press, 2008). U.S. Army Captain (now Major) Kyndra Miller Rotunda served several tours as a Judge Advocate General officer, including an assignment in Guantanamo Bay. Among her criticisms of the administration is “giving detainees more rights than the Geneva Conventions require.” However, the detainees at Gitmo needed more rights. Unlike prisoners of war, they were subject to prosecution and possibly the death sentence. Rotunda compares Gitmo with the more restrictive environment of a prison in Ohio, but prisoners have already been charged, tried, given counsel and procedural safeguards, and convicted. Detainees at Gitmo were held year after year without formal charges or trial.
“Military Commissions: Problems of Authority and Practice,” 24 Boston U. Int’l L. J. 15 (2006). In deciding to authorize military commissions on November 13, 2001, President George W. Bush relied primarily on the Supreme Court’s decision in Ex parte Quirin (1942). A close look at Quirin reveals a process and a decision with so many deficiencies that it should be remembered as a precedent not worth repeating. Other precedents cited by the administration for independent executive authority, including the trial of John Andre in 1780, are also misleading. Allowing military commissions to operate on the exclusive or “inherent” authority of the President poses a serious threat to basic constitutional principles, including the war powers of Congress, separation of powers, and checks and balances.
“Detention and Military Trial of Suspected Terrorists: Stretching Presidential Power,” 2 J. Nat’l Sec. L. & Policy 1 (2006). Although the Bush administration after the 9/11 terrorist attacks claimed independent authority to create military tribunals, Congress under the Constitution has primary responsibility over military courts, tribunals “inferior to the Supreme Court,” “Offenses against the Law of Nations,” the war power, and “Rules concerning Captures on Land and Water.” This article covers the key differences between the German saboteur case of Ex parte Quirin (1942) and the Bush tribunals, the importance of the Non-Detention Act of 1971, and the litigation that challenged the Bush military tribunals, including the Supreme Court decisions of Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006).
“Military Tribunals: Historical Patterns and Lessons,” CRS Report RL32458, July 9, 2004. This report summarizes the types of military tribunals that have functioned from the Revolutionary War to 2004, explaining the legislative enactments that guided these tribunals and the judicial decisions that reviewed their constitutionality. The report analyzes the powers of Congress under Article I to create and monitor these tribunals, including the enactment of Articles of War. It rejects the claim that the President has some type of inherent authority to create tribunals without statutory authorization.
“Military Tribunals: The Quirin Precedent,” CRS Report No. RL31340, March 26, 2002. On November 13, 2001, President George W. Bush issued a military order to create tribunals to try those who assisted in the 9/11 terrorist attacks. He modeled his tribunals in large part on a proclamation and military order issued by Franklin D. Roosevelt in 1942 after the capture of 8 German saboteurs. The Supreme Court in Ex parte Quirin (1942) upheld the jurisdiction of the tribunal, but the Court's decision, on both procedural and substantive grounds, has been sharply criticized by legal experts.