Stephen I. Vladeck (American University Washington College of Law) has posted On Jurisdictional Elephants and Kangaroo Courts (Northwestern University Law Review Colloquy, Vol. 103, p. 172, 2008) on SSRN. Here is the abstract:
In Beyond Guantanamo: Obstacles and Options, Professor Greg McNeal balances a nuanced critique of the existing military 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. In this Response, I do not disagree with Professor McNeal’s cogent analysis. Instead, I suggest that his analysis gives short shrift to the sweeping personal and subject-matter jurisdiction conferred upon the commissions by the Military Commissions Act of 2006, and the potential repercussions of such dangerously overbroad authority.
As I explain in this brief Response, these shortcomings are perhaps the most serious defects in the proposals for a national security court, because any such institution would necessarily encounter analogous jurisdictional issues: namely who could be tried by such courts, and for what. Professor McNeal is unquestionably correct that major obstacles stand in the way of post-Boumediene reform, but any meaningful discussion of reforms must also focus on the broader – and perhaps more intractable – jurisdictional issues.