Is the Military Commissions Act Wise?
By Richard Epstein I have a simple two-step theory to explain the drafting of the Military Commission Act of 2006. First, think of every vital and constitutional protection traditionally afforded individuals subject to incarceration. Second, deny those safeguards to any persons who are defined, or branded, as unlawful enemy combatants. And presto, stylized and overbroad claims of national security place millions of people living in this country in constitutional limbo. Just focus on this key provision of the MCA: “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” That provision is exquisitely drafted for the MCA’s perverse purpose. The Act’s overarching goal is to deny federal and state courts, and the judges and justices who s
