Military Commissions Are Military Commissions Legal? It

Military Commissions

Are Military Commissions Legal?

It was on November 13th 2001 when then President George Bush issued a military order establishing military commissions to try captured terrorists. Critics immediately claimed that these military commissions were unconstitutional and that the president lacked the authority to create them. Contrary to popular belief, military commissions have existed in the United States for most of it's history and used to try foreign nationals for war crimes. And in the case of al Qaeda operatives captured on the battlefield, the legal rules and protections that have evolved are similar to those found in civilian courts. However, the Bush administration lacked Congressional authority to set up these commissions, they violated the Military Code of Justice, and the differences between the rights and protections provided for in civilian courts and these military commissions are too great to overcome the question of legality.

President Bush's lawyers point to the WWII Quirin case of several German saboteurs where the Supreme Court decided that trying these German nationals in front of military commissions was consistent with the president's authority. In the Quirin case, however, Congress had declared war and therefore gave its approval for the president to take such actions. (Rivkin, 2006, p.124) But in the wake of September 11, 2001, Congress, while giving the president authority to use force against those who committed, planned, authorized, or aided in the attack, had not "explicitly authorized the use of military commissions." (Hagle, p.3) And because they had not, the president was not authorized to use the military code of justice against illegal enemy combatants the way Congress did in 1941. The military commissions used in the Quirin case may have been completely legal, but this is not the case with President Bush's military order of November 13, 2001.

It is true that military commissions and civilian courts share a number of similarities; most particularly the fact that a defendant is innocent until proven guilty, has the right against self-incrimination, are open to the public, and has an appeals process. (Bravin, 2001) But there were some very important discrepancies, and these make all the difference as to whether the military commissions are legal. Firstly, military commissions are composed entirely of military officers, people who have sworn to defend this nation with their lives. It is not entirely possible for such people, with such a strong dedication to the nation and its defense, to be completely objective. After all, the defendants are accused enemies of the Unites States, the very people these military officers are at war with.

Secondly, while these defendants are given access to defense attorneys, these attorneys are also military officers and are appointed by the court. If the defendant seeks an outside civilian attorney, the defendant must provide it for themselves, the attorney must pass a security check, and is barred from attending certain aspects of the trial containing sensitive information. In other words, the defendant is not really allowed the counsel of their choice to provide a complete defense. And, as to the defendant's right to a public trial, while the president's order does allow for the public to observe, the fact that these commissions are being held on a military base in Cuba makes it very difficult for the public, or the press, to travel there. And when they do, the military commissions can bar the public from any aspect of the proceedings which they deem to be sensitive to national security. In effect, anything the military commission does not want the public to see will not be seen.

There are also some very major differences between civilian courts and military commissions when it comes to the rules of evidence, The most important aspect of this difference is the fact that military commissions have looser standards for the introduction of evidence. For example, there are specific rules regarding when evidence is admissible in a civilian court, but the presiding officer has almost absolute authority over whether to allow evidence or not. All the officer has to do is decide that it has "probative value to a reasonable person." (Hagle, p.6) And if a person is convicted in a military commission, while they do have the right to appeal to a three member military board, it is not the same as the rights guaranteed in a civilian court. Those convicted in a military commission ultimately cannot appeal to the Supreme Court to overturn their sentence, instead it is up to the Secretary of Defense and finally the President of the United States to either approve or deny the conviction and sentence. In effect, the president has personal authority to approve a death sentence and order it carried out.