반테러과정의 법치주의와 인권보호 : Hamdan판결의 의의 (Rule of Law and Civil Liberties in Counterterrorism : Hamdan v. Rumsfeld)

서지정보

· 발행기관 : 미국헌법학회
· 수록지 정보 : 미국헌법연구 / 19권 / 1호 / 35 ~ 62페이지
· 저자명 : 권영설

초록

Attempts were made in the present paper to examine the U.S. Supreme Court's decision in Hamdan and the role of courts and the law in the fight against al-Qaeda and other terrorist groups. The article explores how Hamdan reinforces the rule of law in particular and the separation of powers, two of the cardinal principles in the American constitution.
Among those at issue was a challenge to the military commissions established by President Bush to try individuals, like Mr. Salim Ahmed Hamdan, for war crimes at Guantanamo naval base in Cuba. The challenge to the military commissions emerged from the detention of prisoners, nearly all of whom have been held without charge as "enemy combatant" for number of years. Also dealt with was the question of the Court's jurisdiction to hear that challenge in light of the Detainee Treatment Act.
In a split 5-3 decision the Supreme Court found that federal courts should retain jurisdiction, invalidating the controversial military commissions. It is to be noted that the Court concluded the commission violated Article 3 of Geneva Conventions which requires specifically all trials to be conducted by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Thus the judicial forum falling in that category has to be the court-martial in the case of the United States.
In the aftermath of this landmark decision, Congress rather swiftly responded to it by establishing new commissions. It is to be submitted the Hamdan will remain an undeniably significant triumph for the rule of law and human rights, reaffirming the continuing role of the Judiciary as a necessary check on the Executive.

영어초록

Attempts were made in the present paper to examine the U.S. Supreme Court's decision in Hamdan and the role of courts and the law in the fight against al-Qaeda and other terrorist groups. The article explores how Hamdan reinforces the rule of law in particular and the separation of powers, two of the cardinal principles in the American constitution.
Among those at issue was a challenge to the military commissions established by President Bush to try individuals, like Mr. Salim Ahmed Hamdan, for war crimes at Guantanamo naval base in Cuba. The challenge to the military commissions emerged from the detention of prisoners, nearly all of whom have been held without charge as "enemy combatant" for number of years. Also dealt with was the question of the Court's jurisdiction to hear that challenge in light of the Detainee Treatment Act.
In a split 5-3 decision the Supreme Court found that federal courts should retain jurisdiction, invalidating the controversial military commissions. It is to be noted that the Court concluded the commission violated Article 3 of Geneva Conventions which requires specifically all trials to be conducted by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Thus the judicial forum falling in that category has to be the court-martial in the case of the United States.
In the aftermath of this landmark decision, Congress rather swiftly responded to it by establishing new commissions. It is to be submitted the Hamdan will remain an undeniably significant triumph for the rule of law and human rights, reaffirming the continuing role of the Judiciary as a necessary check on the Executive.

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