Hamdan = Most Important Pres. Power Decision?

[MARK STEIN]

On the issue of whether Congress can or will set the prosecutions on track again:

Four Justices held that "conspiracy" (i.e., being an active member of Al Qaeda) is not prosecutable under the law of war.  Kennedy expressed no opinion on this issue, and neither (as I read it) did Alito.

While Congress can authorize military tribunals, wouldn't it be a prohibited ex post facto law for Congress to say that being a member of Al Qaeda now IS an offence against the law of nations, with retroactive effect?

So as to most detainees, successful prosecution in the future would seem to require that the Administration and Congress go through a big rigamarole in the hope that Kennedy and Alito will eventually vote their way and overturn this aspect of the plurality decision.  Maybe the Administration will do it, but since indefinite detention was probably the Administration's first choice all along, I predict not.    

Mark



Howard Gillman <gillman at usc.edu> wrote: ...is there a chance that Congress may respond to the decision by giving the President all the powers he's requesting?

HG

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