The Virtues of Abstention: Separation of Powers in Al-Nashiri II

Authors

Nicholas A. DiMarco

Document Type

Note

Abstract

(Excerpt)

Part I examines various scholarly approaches to judicial deference, then considers deference in the context of military commissions. In Part II, the history of military commissions in the United States is examined, paying particular attention to the extended dialogue among the coordinate federal branches that created the system currently in operation. The decision in Al-Nashiri II not to adjudicate a collateral attack on one of these commissions is the focus of Part III. That Part embraces the underlying jurisdictional challenge at stake in Al-Nashiri II, the development of abstention doctrine generally and as applied to the current commissions, as well as the role judicial deference played in the panel’s decision. Finally, in Part IV, this Note argues that the path of abstention had many virtues in this case and as a rule of law, because it furthered sound separation of powers principles by respecting the considered judgments of Congress and successive Presidents. Part IV first categorizes the type of deference the panel engaged in by abstaining. Next, it considers the effect the decision will have on future collateral attacks on commission proceedings, as federal courts will now review military commission final judgments, just as Congress and the President intended, rather than intervening indiscriminately. This Note argues that this effect will, in turn, preserve the commission system created by Congress—the branch best suited to weigh the intricate national security considerations involved in prosecuting and bringing to justice those who, in their attempt to thwart our military effort, violate the laws of war.