Military Commissions Bill Violates Constitution

January 28, 2007Duke Law News

A bill introduced today by President Bush to establish new military commissions to prosecute alleged terrorists held in Guantanamo Bay, Cuba, still violates the legal conditions set out earlier by the Supreme Court, a Duke University law professor says.

The earlier commissions, established by the White House and Department of Defense in 2001, were struck down by the Supreme Court in its "Hamdan v. Rumsfeld" decision in June. Duke Law Professor Madeline Morris said that based on the details outlined by the president at his press conference, his proposal does not meet the conditions for lawful military commissions set out by the Supreme Court in "Hamdan."

"The president said nothing that indicates a fundamental change of course or of rules in the conduct of military commissions. On that basis, the White House bill is seriously flawed and violates fundamental principles reflected in the Supreme Court decision," said Morris, an expert in public international law and the law of war.

An alternative to the White House bill, drafted in conjunction with Morris and other Duke law professors, has been conveyed to the Senate Armed Services Committee, said Morris, who directs Duke Law School's Guantanamo Defense Clinic.

"Rather than jettisoning, as the White House bill does, the Uniform Code of Military Justice (UCMJ) and procedures in the Manual for Courts Martial which are battle-tested and have been developed throughout the history of American military justice, this alternative proposal is based on the UCMJ and Manual for Courts Martial, departing from those only in six specific and narrow ways designed to meet the needs that the current military commissions are intended to address."
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