Analysis of the constitutionality of the Bush administration's Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terror

Abstract

This study analyzes the constitutionality of the Bush Administration’s “Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War on Terrorism.” It takes a trilateral approach in investigating the President’s actions by examining Articles I, II, and III of the Constitution. In Article I, the Legislative Branch’s power to declare war and create rules for captured prisoners is cross referenced with Congress’s Authorization for Use of United States Armed Forces. In Article II, the President’s role as Commander-in-Chief of the Armed Forces is considered. Finally, in Article III, the Supreme Court’s role in interpreting and applying the words of the Constitution is scrutinized. The study concludes that the Bush Administration was within the scope of its constitutional powers in ordering the detainment of unlawful enemy combatants.