Even assuming that the MCAs post conviction review procedures would permit full

Even assuming that the mcas post conviction review

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a right that can be vindicated after the fact. Even assuming that the MCA’s post-conviction review procedures would permit full consideration of these issues, but see infra at 22-24, “setting aside [a] judgment after trial and conviction insufficiently redresses the defendant’s right not to be tried by a tribunal that has no jurisdiction.” Hamdan v. Rumsfeld , 415 F.3d 33, 36 (D.C. Cir. 2005), rev’d on other grounds , 126 S.Ct. at 2798. Indeed, the importance of permitting defendants to bring substantial challenges to the personal jurisdiction of military tribunals before trial underlies the Supreme Court’s decisions in Councilman , Reid , Toth , and Quirin . In those case, the Court departed from (or recognized the appropriateness of departing from) its usual equitable principle prohibiting intervention in pending military proceedings, and—recognizing the importance of the issues involved— permitted challenges to pending proceedings when they involved fundamental status-based challenges to the personal jurisdiction of the military. See Councilman , 420 U.S. at 740, 758-59; Reid , 354 U.S. at 41; Toth , 350 U.S. at 23; Quirin , 317 U.S. at 24; cf . Councilman , 420 U.S. at 759 (noting that in these cases, “the disruption caused to petitioners’ civilian lives and the accompanying deprivation of liberty made it especially unfair to require exhaustion when the complainants raised substantial arguments denying the right of the military to try them at all” (internal quotations and alteration omitted)). The importance of permitting pre-trial review is particularly heightened in Petitioner’s case, because subjecting a juvenile to adult criminal processes risks causing psychological and developmental harm. Cf. In re Gault , 387 U.S. 1, 15 (1967) (noting that the juvenile justice system was established in part to protect juveniles from the “rigidities, technicalities, and harshness” of the “substantive and procedural criminal law” applicable to adults); 18 U.S.C. 21
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§ 5031 et seq . (establishing special procedures for detention, trial, and sentencing of juveniles). Further, trying Petitioner by MCA military commission would itself violate domestic and international laws. See Section II infra . These legal violations cannot be fully remedied once a trial has occurred. The MCA is also an inadequate substitute for habeas corpus because it is unclear that it will permit defendants to bring a sufficiently broad range of post-trial challenges. Although the scope of post-conviction review available under the MCA has not been tested, it is clear from the statute’s text that it does not simply duplicate habeas review. The relevant provision, 10 U.S.C. § 950g(c), provides: The jurisdiction of the Court of Appeals on an appeal [of a final judgment rendered by a commission] shall be limited to the consideration of (1) whether the final decision was consistent with the standards and procedures specified in this chapter; and (2) to the extent applicable, the Constitution and the laws of the United States.
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  • Summer '16
  • Ramon Wawire
  • Supreme Court of the United States, Habeas corpus, Hamdan v. Rumsfeld, Boumediene v. Bush, military commission

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