TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

• The Supreme Court held that the military commissions were unlawfulbecause they violated the Geneva Conventions. Specifically, thecommissions implemented by the Bush Administration were heldto violate the basic protections afforded enemy combatants underCommon Article III of the Conventions.• Among other concerns, the military commissions were faulted forforbidding a defendant from seeing—or even knowing about—certainevidence used against him, and for allowing statements madeunder coercion to be admitted as evidence.After the Supreme Court’s ruling, new military commissions were created thatprovided greater protection for the rights of detainees. This case also openedthe door to other challenges to executive power and limits to the AUMF.Hamdan was found guilty of material support for terrorism and sentenced toa five-and-a-half year prison sentence, with five years credit for time served atGuantanamo. In 2009, he was deported and is now living in Yemen.Executive Orders and Presidential DirectivesThe President may execute the laws or give direction and guidance on nationalsecurity policy through an Executive Order (EO). Executive Orders donot require Congressional approval, but they have the force of law if made inpursuance of an Act of Congress that gives the President discretionary power.An early precursor to an Executive Order occurred when President GeorgeWashington declared in 1793 that the US would remain neutral during a timeof Anglo-French belligerency; he made this ‘Neutrality Proclamation’ despiteCongressional authority over matters of war and peace. 24Along similar lines, a National Security Directive—sometimes called a PresidentialDirective, but whose formal title usually changes with a transfer ofpower between administrations—is drafted by the National Security Council(NSC) and carries legal force when signed by the President. 25 There is nosubstantive legal difference between a Presidential Directive and an ExecutiveOrder, and both can be challenged in the courtroom or through Congressionalintervention. 26Belfer Center for Science and International Affairs | Harvard Kennedy School19

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