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But the ruling in Rasul v Bush has now, subject to the provisions of the MCA, established that American courts have jurisdiction to decide whether non-US citizens are wrongfully imprisoned.

Military commissions are not the appropriate forum for justice. Under the MCA, a neutral panel is to determine the status of a detainee. If an alien detainee is judged "lawful", then the military commission system does not apply. If judged "unlawful", then trial by military commission commences. This process is susceptible to miscarriages of justice, for the mere finding that one is an unlawful enemy combatant would have the effect of removing due process rights guaranteed under the Constitution. While the MCA contains a definition of terminology, the permissible bounds of the "enemy combatant" category are vague.

Ruth Wedgwood (2004) contends that regular criminal law is unsuitable due to its procedural and substantive hurdles. In war, she argues, even "first-rate intelligence" may not be able to prove beyond reasonable doubt that an individual planned to commit terrorist acts. Moreover, the risk of retaliation - against judges and jurors - is too great to be ignored. An open trial could also deliver crucial secrets to the enemy.

Such obfuscation should not mask the fundamental objective of the Constitution, which was to guarantee individual liberty. Commissions that operate outside the Uniform Code of Military Justice dilute the presumption of innocence until proven guilty; the philosophy behind the Constitution favours the courts being able to review the detention of all persons. The coming years may see the Supreme Court declare the MCA unconstitutional. It is telling that we must wait (once again) for the judiciary to act. Congress, it seems, is always happy to follow the President's lead.

INDEFINITE DETENTION

The issue of detention is difficult, primarily because the length of detention cannot be too short for there is a risk that captured suspects could rejoin enemy forces. But the Bush administration crossed a very clear line when it attempted to label American citizens enemy combatants, and in the process strip away constitutional rights.

According to the administration, American residents are not protected from being labeled unlawful enemy combatants and then subsequently flown to Guantanamo Bay to be detained, even while on American soil. As Rumsfeld v. Padilla demonstrated, the Bush administration considers US territory to be a "battlefield", hence allowing the detention

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