Presidents Bush and Obama have created a vigorous public debate since the September 11 attacks over whether suspects in the “war on terror” are entitled to a regular criminal trial, court-martial (the regular military justice system), or a “military commission” trial, or whether they are entitled to a trial at all. A “military commission” is traditionally an executive branch (or Article II) court, created to try war criminals in a time and place where there are no criminal or ordinary military courts to try suspects. But Congress has explicitly authorized them twice since the September 11 attacks.
Bush’s and Obama’s actions since 2001 raise a number of fundamental constitutional questions: Can the President — as Bush tried to do — detain an American citizen indefinitely without trial? Can the President — as Obama claims — kill American citizens without trial? Are Bush’s and Obama’s efforts to detain foreigners indefinitely without trial constitutional? When, if ever, is a “military commission” constitutional? Can U.S. citizens be subject to a military commission? How about foreigners? Do the Bush/Obama military commissions follow the Constitution? And finally, putting aside constitutional principles, are military commissions more effective on a practical level in punishing suspected terrorists? The following are 11 constitutional principles about the trial rights of Americans and foreigners during the “war on terror.”
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