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Authors

Amanda Schaffer

Abstract

This Comment explores the government's right to treat citizens as enemy combatants and whether their trials should be by military commissions or by the non-military criminal justice system. It gives background information and explains the source of the government's right to determine enemy combatant status and to use military commissions. This Comment also describes the distinctions between a military trial and a regular criminal trial and explains the status of two cases regarding American citizens declared to be enemy combatants. The Comment goes on to explain why the government wants to use military commissions to try terrorists and the advantages of these commissions over regular criminal proceedings. It analyzes the distinctions between citizens and non-citizens and examines the constitutionality of declaring citizens enemy combatants. This Comment then discusses how terrorist differ from other types of criminals and how those differences justify disparate treatment. This Comment then proposes a solution and determines that the government does have the right to treat citizens as enemy combatants. It concludes that military commissions should try these enemy combatants, however, there must be a structured judicial proceeding to determine whether an individual is actually an enemy combatant.

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