Judicial Review of Military Trials?
eisgrube at PRINCETON.EDU
Wed Nov 21 10:10:47 PST 2001
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
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?
Christopher L. Eisgruber
Director, Program in Law and Public Affairs
Laurance S. Rockefeller Professor of Public Affairs
Woodrow Wilson School
Princeton NJ 08544
eisgrube at princeton.edu
tel: 609 258-6949
fax: 609 258-0922
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