Analysis Brief

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Military Commissions Made Legal

Prepared by: Lionel Beehner
October 18, 2006


Military commissions—criminal courts run by the army during wartime—are nothing new in American history. Their origins can be traced back to the Mexican-American War of 1846, and later were employed—and further defined—during both the Civil War and World Wars I and II ( These commissions exist to try detainees during wartime who have broken the laws of war. Shortly after September 11, 2001, President Bush issued a military order to allow the United States to detain, interrogate, and try terrorist suspects. The White House has since maintained that given the dangers posed by terrorists and the sensitivity of the evidence against them, special courts are needed. Hence, President Bush on Tuesday signed into law the Military Commissions Act, which allows military tribunals to try “unlawful enemy combatants” such as captured al-Qaeda operatives like alleged 9/11 mastermind Khalid Sheikh Mohammed (BBC). “We will answer brutal murder with patient justice,” Bush said at the signing. The bill passed both houses of Congress in late September.

But there are murky areas to the law. Not all of the 450 detainees at Guantanamo Bay are high-value terrorist suspects or 9/11 plotters. Many of them, including Osama bin Laden’s Yemeni chauffeur Salim Ahmed Hamdan, are being detained for conspiracy to attack civilians. What was Hamdan’s crime, asks Seton Hall University’s Raymond Brown in this Backgrounder, “Proximity to Bin Laden?” Another detainee is a former al-Jazeera cameraman, fluent in English, who the Guardian reports was promised his freedom if he would agree to become a spy.

The new law has come under heavy criticism from human rights groups. They say it compromises human rights and civil liberties because it strips detainees of their right to habeas corpus (Human Rights Watch) and allows evidence obtained from coercion in addition to hearsay evidence. Further, only a few dozen of the detainees at Guantanamo Bay will be tried by these military tribunals, leaving the rest in legal limbo (Human Rights First) without legal means to challenge their detention. Some legal experts also say the bill grants the president too much discretion to decide who qualifies as an enemy combatant.

The law seeks to clarify the issue of torture and interrogation techniques. It leaves alone Common Article Three of the 1949 Geneva Conventions, which requires that all war detainees be granted humane treatment. But the law narrows the scope of the War Crimes Act of 1996 by decriminalizing certain interrogation techniques. American interrogators—including CIA operatives abroad—can still be prosecuted for war crimes but only if found in violation of “grave breaches” of the Geneva Conventions. As CFR Adjunct Senior Fellow Noah Feldman tells, the new law is expected to be met with a number of legal challenges. "This is not the end of the game," he says. As the Christian Science Monitor reports, the law “sets the stage for...yet another historic showdown between the courts, the president, and Congress.”

Experts point to other historical examples of military commissions. Gabriella Blum and Martha Minow of Harvard Law School, for instance, say the United States should follow the Israeli model on detainee rights, which does not strip the courts of their powers of judicial review (Boston Globe). Paul B. Halliday of the University of Virginia looks to the poor decision by British Parliament in 1689 to suspend the writ of habeas corpus (JURIST). “Americans, like the English, have always needed habeas corpus most when our fears were greatest,” he argues. “When we use habeas corpus, we protect the safety of both our physical selves and our moral selves.” Jess Bravin of the Wall Street Journal compares the White House’s detainee bill to the Japanese use of illegal military commissions in World War II, which denied American POWs access to courts-martial and basic Geneva Convention protections.  

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