Running Out of Options: Expiring Detention Authority and the Viability of Prosecutions in the Military Commissions under Hamdan II

Abstract

On May 23, 2013, President Obama delivered a major address on national security in which he outlined the future of the military commissions. While pledging to close Guantanamo, the President defended the "military justice system" as a place to "bring terrorists to justice" in the war on terrorism. Rather than shutting down the military commissions, the Administration is bringing new cases for the first time in years. Obama's view of the military commissions, dating back to 2009, is that there are "detainees who violate the laws of war and therefore are best tried through military commissions." Obama's paradigm for charging detainees compels the question: what offenses constitute a violation of the laws of war and can therefore be tried at the military commissions?