Part I of this Note describes current scholarship on the history of military commissions and identifies a gap in the prevailing narrative, namely, an explanation for why the military favored a legal process over collective reprisals or summary executions. Part II seeks to address this gap, by examining the circumstances in which the military convened the commission and the context in which President Abraham Lincoln approved it. Part III concludes that this historical perspective helps clarify the original role of military commissions as articulated in the Supreme Court case of Hamdan v. Rumsfeld and calls into question whether an institution that emerged as a substitute for force is the right vehicle for providing due process.
Law | Legal History
Explaining the Sioux Military Commission of 1862,
Colum. Hum. Rts. L. Rev.
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