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Conspiracy and Alternative Crimes In the Military Commissions Act of 2009: Is There a Way Out? Open Access

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The primary purpose of this paper is to analyze the legitimacy of three offenses listed in the Military Commission Act of 2009: conspiracy, material support for terrorism, and aiding andabetting. The recent back-and-forth between the Supreme Court and Congress involved in the process of enacting the Military Commissions Act of 2009 shows that the core of the problem originates in the fundamental principle of the U.S. political system, separation of powers, particularly between Congress's legislative authority and the Supreme Court's judiciary review. Thus, the first part of this paper begins with laying out the traditional relationship between the law of war and military commissions and the problem arising from the enactment of the MCA. It has long been understood that the scope of military commissions is limited to trying crimes recognized by the law of war in accordance with international law, but the enactment of the MCA seems to indicate a radical departure from the established practice of the United States government. The next section then answers the threshold question: what are the sources of Congress's power to enact the MCA that includes the crime of crimes that are not recognized by the law of war. Then, the paper identifies four primary sources of such Congress's legislative power, clause 10, 11, 14 and 18 of Article I, Section 8 of the U.S. Constitution, and analyzes the limited scope of each source.

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