In November 2001, President Bush signed an executive order granting himself and Secretary Rumsfeld the right to capture and detain any suspected "enemy combatants." By January 2002, the U.S. military had begun holding detainees at Guantanamo Bay.

Bush's order raised a number of constitutional issues. Although many involved civil liberties, the most pressing was whether the President had the constitutional authority to claim such a power in the first place.

In June 2006, the Supreme Court ruled that he did not. Writing for the majority in Hamdan v. Rumsfeld,Justice Kennedy held that because Congress had never explicitly given President Bush the right to authorize detentions, he lacked the authority to do so.

Congress passed the Military Commissions Act in response to the Court's ruling. Signed into law in October 2006, the MCA expressly grants the President and Secretary of Defense the right to suspend due process for "unlawful enemy combatants."

The MCA thus resolved a crucial constitutional issue. Nonetheless, its provisions have led to more problems than they solved.