Judicial Review of Military Trials?

[Christopher Eisgruber]

As bipartisan criticism of the Bush military order continues, one interesting
question is whether American judges will be courageous enough to invalidate it (or
limit its scope).  Some think not.  I draw encouragement, though, from decisions
like The Pentagon Papers Case.

I've also been drawing some encouragement from a foreign precedent:  the Israeli
Supreme Court's 1999 decision in Committee Against Public Torture in Israel v.
Israel.  As I understand it, the Israeli court held unlawful the government's
policy of using "moderate physical pressure" against terrorists.  The court did
not say that such coercion was absolutely impermissible--but it did hold that
explicit authorization by the Knesset was necessary:  the executive could not act
without legislative authorization.  A similar strategy might be available to a US
Court now.

It occurs to me, though, that I might be mistaken about the decision or its
consequences.  Anybody know more about it?  Or about its aftermath?

--Chris

--
Christopher L. Eisgruber
Director, Program in Law and Public Affairs
Laurance S. Rockefeller Professor of Public Affairs
Woodrow Wilson School
Princeton University
Princeton NJ   08544
eisgrube at princeton.edu
tel: 609 258-6949
fax: 609 258-0922