January 7, 2010
Federalist Society Debates Civilian Trial for KSM
The Federalist Society is hosting an on-line debate on the legal and policy implications of the administration's decision to try Khalid Sheikh Mohammed and others in regular Article III courts, while trying some Guantanamo detainees in military commissions.
The debate so far explores the applicability of Ex Parte Milligan (holding that a military commission organized in the late Civil War, in a state not invaded or engaged in rebellion, had no jurisdiction to try and convict a civilian U.S. citizen when the regular federal courts were open and available) Ex Parte Quirin (holding that a military commission had jurisdiction to try German and U.S. citizens disguised as civilians and intending to commit hostile acts within the United States) and the proper interpretation of Hamdi v. Rumsfeld (affirming Quirin's holding and holding that a U.S. citizens held within the United States as an "enemy combatant" enjoys some measure of process to challenge his detention) and Hamdan v. Rumsfeld (affirming Quirin's holding and holding that military commissions must conform to requirements of the Uniform Code of Military Justice and Common Article III of the Geneva Conventions).
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