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August 28, 2010


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"However, the Military Commissions Act forbids "unlawful command influence" on the process, which could be interpreted to mean that Obama can't order a more attractive plea deal be offered, much less dropping the charges"

I am not an attorney, but knowing a fair piece about defense policy and military history, "command" in UCMJ-speak generally refers to the chain of command uniformed military, not the POTUS in his capacity as Commander-in-Chief or the civilian service secretaries or the SECDEF as civil authorities, unless specified.

The president's powers as C-in-C are constitutional, not statutory, and while Congress can and has expanded the reach of the president's military authority by statute, constraining it enters into dicey separation-of-powers territory, which is why the War Powers Act is a dead letter.

Even assuming the Congress could render Obama's authority to issue directives to JAG personnel less than his authority over the DoJ, he retains his powers of pardon which SCOTUS has defined as "ennumerated" and "unlimited" ( except in cases of impeachment) to dispose of any military commissions case he wishes to avoid trial or sentencing.

The USG could also declare any particular detainee a POW, which in this case, negates the entire basis of the charge since combat is not itself a war crime

The situation would have been a lot simpler if in 2001, Bush had just followed Ex Parte Quirin, Eisentrager and other existing precedents on war crimes, detainees and POWs.

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