Stephen I. Vladeck[*]
One need not look far these days to find proposals for how to “fix” U.S. detention policy, especially with respect to the non-citizens detained as “enemy combatants” at Guantánamo Bay, Cuba. In the aftermath of the Supreme Court’s June decision in Boumediene v. Bush—particularly its conclusion that the Guantánamo detainees have a constitutional right to judicial review—such proposals have taken on an added sense of urgency, as commentators of all stripes grapple with the (now very real) possibility that such review will lead to the frustration and/or invalidation of existing policies.
Within this burgeoning literature, though, the military tribunals convened at Guantánamo under the Military Commissions Act of 2006 (MCA) have received curiously short shrift. Part of the problem, I suspect, is that compared to the hundreds of individuals held at Guantánamo (and the thousands in U.S. custody elsewhere) who are not facing trial, the number of individuals potentially subject to trial by military commission is comparatively small. I also imagine that the relative neglect of the commissions is at least to some degree a result of the absolutism that pervades much of the commentary relating thereto: some view the Guantánamo commissions as categorically unconstitutional; some view them as both good policy and legally sound; some view them as the only way to deal with the thorny problems posed by international terrorism.
Fortunately, Professor McNeal falls into none of these camps. Rather, his thoughtful essay balances a nuanced critique of the existing commission structure with an understanding of the difficulties Article III courts would face in trying the same defendants for the same offenses. Moreover, Professor McNeal is rightly skeptical of the increasingly common calls for a hybrid “national security court” to handle the prosecution of a class of terrorism-related offenses and offenders, suggesting that there are significant obstacles in the way of any transition to such a model.