Military commissions, supreme court cases, and enemy combatant trials

Criminal Justice: Corrections

The objective of this work is to briefly explain the background of the military commission controversy including relevant supreme court cases and to determine whether the U.S. government should get rid of military commissions, close Guantanamo Bay and place 'the enemy combatants on U.S. soil with full regular criminal trials' and then to explain this position.

The Facts

The New York Times states in its May 9, 2009 article entitled: "Military Commissions" that the military commissions "…rose to new prominence after the September 11th attacks due to President George W. Bush's decision that terrorism suspects would be considered enemy combatants who would be tried by military tribunals rather than in civilian courts." The system of tribunals was created by the Bush administration in 2001 and 2002 and these "specifically did not adhere to the standards set out in the Geneva Convention" and a prison camp was established at Guantanamo Bay Naval Base in Cuba." (New York Times, 9 May 2009) This system held prisoners "away from federal court jurisdiction" and held that the right of habeas corpus (right to ask for release of unjust imprisonment) was not applicable to foreign prisoners held outside of the United States as enemy combatants.

II. Response of the U.S. Supreme Court

The U.S. Supreme Court did not agree and this is evidenced in the case Rasul v. Bush. In June 2006 in the case of Hamdan v. Rumsfeld the U.S. Supreme Court "struck down military tribunals that the Bush administration had established" following the incident of September 11,2001, on the basis that the tribunals were in violation of the U.S. Constitution and the Geneva Conventions. This law was then rewritten by Congress and the Bush Administration and the Military Commissions Act of 2006 was passed which effectively "…broadened the definition of enemy combatants beyond the traditional definition used in wartime, to include noncitizens living legally in the United States as well as those in foreign countries and anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense." (New York Times, 2009)

The work of Stewart (2006) entitled: "Rethinking Guantanamo: Unlawful Confinement as Applied in International Criminal Law" states that while international law has addressed the legal debate surrounding Guantanamo, that this subject has been at focus due to its "applicability of domestic legal protections within the United States, international human rights norms and nuanced distinctions in the structure and negotiated history of international humanitarian law." The Department of Defense Rules for Military Commissions - Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice" (2005) relates that when comparing the DOD rules for military commissions procedural rules when compared with the proposed legislation and the Uniform Code of Military Justice states findings that a great difference in actuality does exist between the two and that such inherent rights including the "Miranda Warning' are deemed inapplicable. The U.S. Supreme Court Case Rasul v. Bush, issued at the end of the Court's 2003 -- 2004 term stated that "…U.S. courts do have jurisdiction to hear petitions for habeas corpus on behalf the approximately 550 persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism." (Elsea, 2005) It was stated at the time that it would appear that "…that federal courts will play a role in determining whether the military commissions, established pursuant to President Bush's Military Order (M.O.) of November 13, 2001, are valid under U.S. constitutional and statutory law, and possibly under international law." (Elsea, 2005) It is reported that in June 2008, and in the case of Boumediene v. Bush that the U.S. Supreme Court "overturned the portions of the law" relating to habeas corpus and stated findings that the individuals held at Guantanamo Bay have "constitutional rights to challenge their detention in United States courts." (The New York Times, 2009)

III. Response of the Obama Administration

It is related that one of the first things that the administration of President Barack Obama accomplished was an executive order that closed Guantanamo and one that as well "issued an immediate halt to the military commission proceedings for prosecuting detainees…" (The New York Times, 2009) Furthermore, a request was filed in Federal District Court in Washington requesting that habeas corpus proceedings there by stayed.

IV. Analysis