THE RULE OF LAW AND THE LAW OF WAR: Military Commissions and Enemy Combatants Post 9/11

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After the horrific terrorist attacks of September 11,2001 on New York, Washington D.C. and Pennsylvania which resulted in the unprecedented destruction of the World Trade Center, the Pentagon and the murder of several thousand people from eighty-seven countries, President George W. Bush proclaimed a national emergency and issued an executive order which for the first time in United States history permits the government to hold and prosecute by military commission stateless members of a terrorist organization in an undeclared war.

The study examines the nature and purpose of military commissions in American history that provides the context for their role as anticipated by the Bush Administration. It further examines the role of the President as Commander-in-Chief under Article II of the United States Constitution to issue his military orders on military commissions in an age of international terrorism, and the principal substantive procedures issued by the Pentagon to make the commissions fully operational. The study addresses the pivotal role of the United States Supreme Court in deciding landmark national security cases that could well test the very foundation of the balance of power in American government and considers the Administration's authority to declare American citizens as "enemy combatants" and detain them indefinitely without trial; and to hold non-citizen enemy combatants at Guantanamo Bay, Cuba without the opportunity to challenge the basis for their detention in any court of the United States. Finally the study considers whether the war on terror is of such a nature as to warrant expansion of the exercise of war power by the political branches of government. Critical long-term issues that impact on balancing civil liberties with national security interests are identified that must be addressed by the Congress and the Executive in confronting the continuing war on terrorism post-September 11.


“It would be difficult to imagine a more timely work or one more meticulously researched. In these chapters Dr. Cutler hones in on the continuing debate over the right to indefinitely detain American Citizens classified as enemy combatants (Padilla and Hamdi) and the right to hold non-citizen enemy combatants (Rasul and AI-Odah) at Guantanamo Bay Cuba without opportunity to challenge the basis for their detention in any court of the United States. The author's dissection and analysis of the Federal Court decisions in these matters is superb and confirms the outstanding research that characterizes the entire work. Aside from the hundreds of pertinent footnotes throughout, the appendices contain all of the controlling Presidential orders, Department of Defense Regulations and Congressional Resolutions and other directives to satisfy the most avid general reader or researcher. 9/11 and its aftermath have presented daunting challenges to our nation. This book addresses itself to one of those challenges, namely the manner in which we balance our national security interests with the civil liberties of captured "enemy combatants, foreign, or non-foreign. Dr. Cutler begins with a necessary discussion and historical perspective on military commissions dating from the Revolutionary War. His emphasis however, is properly placed on World War II cases such as Yamashita and Quirin, plus others that still serve or are cited as, useful precedents today. Next he details the Presidents, the Department of Defense and Congressional actions in the form of orders, and regulation in the aftermath of 9/11. Major emphasis is placed on both the joint resolution for the use of military force, the establishment of military commissions and subsequent DoD orders … The author’s careful review of the decisions … is most impressive [and] his research throughout is extraordinary! If each member would take the time to read this important scholarly book however chances for swift Congressional action might well be exponentially improved.” – (from the Commendatory Preface) The Honorable James P. King, B/Gen USMC (Ret) (JAG), Judge NYS Court of Claims (Ret)

“This is an excellent study and it should be published. I teach foreign policy analysis at the graduate and undergraduate level and I would use this book to illustrate what we call the second image reversed or how changes in the international system shape domestic politics. It is also an excellent text to use to show the impact of the courts/judges on foreign policy. There are very few studies that focus on this branch of government. This text may be one of the best that I have seen that focuses specifically on how our changing national security imperatives will change how we treat potential and real terrorists. What I like most about the book is that it is not a polemical attack on the Bush Administration or the US military. It is a thoughtful and carefully research analysis of past and recent legal cases and precedents related to laws of war and civil liberties at the time of war … It is obvious that the author knows this field very well and he has done a creative job linking contemporary cases with significant historical cases. He also presents a thorough review of the history of military commissions … It is so clearly written [and] covers some of the most important issues faced by all three branches of our government as we fight this global war on terrorism.” – Steven L. Lamy, Ph.D., Professor and Director, School of International Relations, University of Southern California

“Overall, this is a substantial work that will contribute substantially to our understanding and insights about these vexing problems.” – Arthur D. Wolf, Professor of Law, Western New England College School of Law

Table of Contents

Preface, Acknowledgement
1. Military Commissions in Historical Perspective
2. Military Commissions, Al-Qaida and the Law of Partial War
3. Military Commissions Post 9/11: Procedures and Fundamental Fairness Issues
4. Combatants and the Rule of Law Post 9/11
5. United States Supreme Court Review of Enemy Combatants Post 9/11
6. Military Commissions and Enemy Combatants Post 9/11: Balancing Civil Liberties with National Security Policy
Case References
Constitutional Provisions
Statutes, Rules and Regulations
Bibliography, Index

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