Shortly after the September 11, 2001 terrorist attacks, (then-former) Attorney General William Barr told the Senate Judiciary Committee, "When the United States is engaged in an armed conflict and exercising its powers of national defense against a foreign enemy, it is acting in an entirely different realm than the domestic law enforcement context. The Nation, and all those who owe her allegiance, are at war with those foreign enemies. That is not an analogy or a figure of speech - it describes a real legal relationship and one that is fundamentally different from the government's posture when it seeks to enforce domestic law against an errant member of society. When we wage war, the Constitution does not give foreign enemies rights to invoke against us; rather, it provides us with the means to defeat and destroy our enemies." The power to convene military commissions, he explained, is one of those means.
This week, the National Security Institute at George Mason University's Antonin Scalia Law School published a Law and Policy Paper that proposes certain reforms to the statute governing military commissions at Guantanamo Bay. Written by Adam Pearlman, a Visiting Fellow at NSI and a Special Advisor to FedSoc's International and National Security Law Practice Group, the paper makes three discrete proposals to remedy issues raised during the lengthy pre-trial litigation process at Guantanamo: what he sees as a misapplication of the statute prohibiting unlawful influence; the lack of unilateral contempt powers for the military commissions trial judiciary; and the controversy related to alleged surveillance of detainee legal visits. Pearlman argues that these, and likely other reforms, are need to preserve the Department of Defense's flexibility to use an important war power. Further information about the paper, including the link to download it, can be found here - https://nationalsecurity.