Beyond Guantánamo, Obstacles and Options

By Gregory S. McNeal[*]

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[Editor's Note: This week, we are pleased to present Professor McNeal's Essay on the Military Commissions Act of 2006 .  Part I appears today.  Part II will be posted on Thursday, August 14.]   

Introduction

The Military Commissions Act of 2006 (MCA),[1] passed after the Supreme Court’s Hamdan[2] decision was intended to remedy shortcomings in prior military commissions. Implementing the MCA has proven difficult, as observers have witnessed the high profile resignation of the system’s chief prosecutor, and Congressional hearings questioning the future of terrorism trials. These issues were punctuated by the Supreme Court’s Boumediene[3] decision holding that detainees have a Constitutional right to habeas corpus. Observers unfamiliar with the processes involved with the military commissions may have thought that the Boumediene decision would force the administration to forgo military commissions, perhaps opting instead for trials in Article III courts. However, nothing in the decision required such a result.

In fact, just two months after the Supreme Court’s Boumediene decision, the trial of Osama bin Laden’s alleged bodyguard Salim Hamdan—the first terrorism-related trial by military commission—concluded in a guilty verdict on charges that he provided material support for terrorism.[4] While lower courts begin to work out the details of the Boumediene decision Hamdan will have a simultaneous opportunity to appeal his conviction, and the legitimacy of the tribunal that tried him. In short, when the dust settles, Congress will again be faced with a need to reform military commissions or to prepare the federal judiciary for terrorism trials. This Essay seeks to contribute to that reform discussion.