INTRODUCTION Many recent nonfiction writings contemplate recent history with one watershed event: the catastrophic terrorist attacks of September 11, 2001. Whether in social commentary, political discourse, or even economic calculation, the attacks have generated debate on not only the appropriateness of the resulting Global War on Terror ("GWOT"), but also future ramifications of any newly-set precedent. Not surprisingly, the law and the legal profession have played prominent roles in these debates. Recently, many legal scholars have focused their attention on the ongoing' military commissions trying enemy combatants captured in the GWOT and held in Guantanamo Bay, Cuba. President George W. Bush authorized the creation of military commissions in the "Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism."2 In section 1(e) of this order, the President stipulated that "individuals subject to this order ... be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals."3 Less than two months after this declaration, the first detainees captured in the GWOT were transferred to Guantanamo Bay.4 This Note analyzes the legal foundations of the commissions themselves and questions whether their creation was constitutionally permissible under the separation of powers doctrine. Those who argue in the affirmative contend historical precedent and a series of United States Supreme Court decisions have crystallized the President's ability to create the commissions.5 Conversely, those who argue in the negative contend that the President has overstepped his bounds and that the detainees are entitled to process in traditional U.S. courts.6 Following a deeper consideration of these differing viewpoints, this Note proposes that military commissions are not a violation of the separation of powers doctrine for three reasons: (1) the President was acting pursuant to powers historically afforded to the Commander-inChief; (2) Congress has traditionally deferred to the Commander-in-Chief in this regard; and (3) the courts have crystallized the ability of the President to create military tribunals in cases such as Ex Pane Quirin, which is applicable to the detainees in Guantanamo Bay. I. A BRIEF LEGAL HISTORY OF THE GLOBAL WAR ON TERROR The Global War on Terror formally began in September 200 1,7 but the American government had been fighting skirmishes against terrorism for at least a decade prior.8 While it is beyond the scope of this Note to consider each of these encounters specifically, it is important to consider the general legal methods used by the United States to address past acts by terrorist groups, particularly Al Qaeda. The United States has been legally dealing with Al Qaeda, and persons associated with Al Qaeda, for over seventeen years.9 Initially, the government's preferred legal tactic against these individuals was criminal law:10 through long-arm maneuvering, the government filed federal statute-based charges in federal district court.11 Indeed, "[detention of an Al Qaeda member as an enemy combatant was not contemplated. Rather, restraint on Al Qaeda' s freedom of action was sought only where intelligence reports could be fleshed out .... no one contemplated that we could hold him as a combatant in an ongoing conflict .... "12 In short, because the acts of terrorism in the previous decade13 occurred outside the mantle of war, declared or undeclared, conventional wisdom prescribed that any perpetrators should be handled by courts in the same manner as other peacetime criminals. This paradigm of domestic judicial intervention shifted following the terrorist attacks of September 11, 2001 .14 Within months of this incident, President Bush, in his response to the terrorist attacks, took many legal steps which laid the foundation for taking the legal fight against newly captured Al Qaeda terrorists out ofthe haven of U. …

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Tanja Korpi

Papers

Queries from Querin: Guantanamo Tribunals and the Separation of Powers Doctrine