Still Uncertain After All of These Years: Constitutional Rights of Guantanamo Detainees Tried By Military Commission by Michael D. Ross (U.S. Department of Justice; U.S. Army Reserve) has been posted on SSRN and is forthcoming in Mercer Law Review, Vol. 77, No. 3. Here is the abstract:
This article explores whether Guantanamo detainees are entitled to constitutional protections at military commission trials. In 2006, Congress passed the Military Commissions Act (“MCA”). Its goal was to establish a fair system to try foreign detainees accused of war crimes. The ensuing nineteen years have revealed that the system needs reform. The most important cases, such as the 9/11 and U.S.S. Cole prosecutions, are still bogged down in pre-trial litigation that has lasted over a decade. But before policy makers consider reforms, they should know what constitutional protections apply at a military commission. Federal courts have not answered that question. This article does. Relying on constitutional text, structure, and history, this article explains why Guantanamo detainees are not entitled to any constitutional protections at a military commission.
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