Jonathan Hafetz (Seton Hall Law School) has posted Policing the Line: International Law, Article III, and the Constitutional Limits of Military Jurisdiction (Wisconsin Law Review, 2015, Forthcoming) on SSRN. Here is the abstract:
This Article addresses an important but undertheorized question in existing jurisprudence and scholarship: the proper role of international law in determining the constitutional line between Article III courts and military commissions. This Article makes two principal arguments. First, it explains why, as a normative matter, international law should inform the permissible scope of military commission jurisdiction. Second, this Article describes the functional value of international law in resolving the difficult line-drawing problems between military and Article III courts compared with other possible regulatory tools.
Current litigation over military commission prosecutions at Guantánamo has focused on whether ex post facto principles prohibit military commissions from exercising jurisdiction over offenses such as material support for terrorism and conspiracy that do not violate international law and, therefore, were not prohibited by statute when committed. It leaves open the important question whether the United States can prosecute those offenses under the Military Commissions Act of 2006 based upon conduct that post-dates that statute’s enactment. The U.S.’s position is that such prospective prosecution of non-international law violations is permissible because the offenses violate a separate body of jurisprudence known as the U.S. common law of war. This Article critiques this theory by providing a formal and functional analysis of the continuing relevance of international law as a constitutional limit on military jurisdiction. It further supplies a framework for understanding international law’s role in constitutional analysis more generally.