Murder and the Military Commissions: Prohibiting the Executive’s Unauthorized Expansion of Jurisdiction

Abstract

When Congress passed the Military Commissions Act of 2006 (MCA) to create a military commission system to try detainees held at Guantánamo Bay, it granted the Secretary of Defense the authority to detail the procedural and evidentiary rules. In response, the Secretary promulgated the Manual for Military Commissions (MMC), which, among other things, listed individual elements of each MCA substantive offense. The MMC, however, redefined the MCA offense of “Murder in Violation of the Law of War.” U.S. military, federal, and international law unanimously state that to murder in violation of the law of war, the victim must be a protected person, who is someone taking no active part in the hostilities. Yet the MMC fails to mention the status of the victim, instead declaring that any act taken by an “unlawful combatant” violates the law of war. Beyond being completely at odds with the established law of war, the MMC’s definition conflates individual elements of the crime and drastically expands the limited jurisdiction of the military commissions.

This Note argues that the Secretary of Defense acted without statutory or constitutional authority to redefine the law of war. Although the Obama Administration will not try detainees at Guantánamo, this Note contends that in any future law-of-war prosecutions, judges must require juries to find that the accused actually violated the established law of war. More fundamentally, the Obama Administration should not sustain the Secretary’s unauthorized actions. President Obama should issue an executive order reaffirming the government’s commitment to the international law of war and the administration must scrutinize MCA crimes and MMC definitions before transposing them to future prosecutions. The executive branch has no constitutional authority to redefine the law of war and continuing to apply the MMC’s interpretation would impermissibly expand the limited jurisdiction of any law-of-war tribunal.

Keywords: law of war, Guantanamo, separation of powers, military commission, MCA, Hamdan, Khadr