Hoffman 1

Title: A Review of Military Commissions and the War on Terror

Abstract:
The US use of military commissions in the War on Terror created a controversy that has
dominated the legal world for over nine years now, provoking debates over the rights of accused
terrorists, the president’s authority as Commander-in-Chief, and the extent to which we are
willing to sacrifice our democratic principles in the name of national security. This paper seeks
to discover whether or not military commissions can be used as a legitimate tool in prosecuting
the War on Terror, and if so, whether or not the United States has made appropriate use of them.
The paper is divided into two main parts: the first will examine the historical use and legal
limitations of military commissions in the United States, from the Revolutionary War through
World War II, and then in the present era; the second part will analyze military commissions in
the context of the War on Terror: whether or not the institution can legitimately be applied to the
present situation, and how—and how effectively— the US has made use of military commissions
in the fight against terrorism, and what the potential ramifications of those actions may be.

Contact: Genevieve P. Hoffman

gphoffma@usc.edu
925-699-9200

Bio:
I am a third year undergraduate at the University of Southern California (USC), class of
2012. I am a double major in international relations and economics, with concentrations in
security studies and international political economy. I plan to attend law school in the fall of
2012, with the intent of studying constitutional and international law. I hope someday to work in
the government/policy arena. I speak French and love to travel. My other interests include
reading, writing, singing, playing the piano, and horseback riding.
 Hoffman 2

A Review of Military Commissions and the War on Terror

The US use of military commissions in the War on Terror created a controversy that has

dominated the legal world for over nine years now, provoking debates over the rights of accused

terrorists, the president’s authority as Commander-in-Chief, and the extent to which we are

willing to sacrifice our democratic principles in the name of national security.

This paper seeks to discover whether or not military commissions can be used as a

legitimate tool in prosecuting the War on Terror, and if so, whether or not the United States has

made appropriate use of them. The paper is divided into two main parts: the first will examine

the historical use and legal limitations of military commissions in the United States, from the

Revolutionary War through World War II, and then in the present era; the second part will

analyze military commissions in the context of the War on Terror: whether or not the institution

can legitimately be applied to the present situation, and how—and how effectively— the US has

made use of military commissions in the fight against terrorism, and what the potential

ramifications of those actions may be.

Before getting started, the term “military commission” as it will be used in this paper

must first be defined. The term has been tossed around so often, and so often incorrectly, in

recent years by both the media and the public that the true definition has become somewhat

obscured. A military commission is a tribunal established under military authority and staffed by

military personnel acting as both judges and jury. It is important to understand that military

commissions are distinct from courts-martial; the latter are established by statute and are used in

cases principally involving American military personnel, and very occasionally, civilians present

with the US military. In contrast, the former are derived primarily from both domestic and

international sources of common law, and are used during wartime, typically to try enemy
 Hoffman 3

combatants for violations of the laws of war (Vagts, 2007: 36). However, military commissions

have also been used to try non-military crimes in areas where the military has taken control and

the functions of ordinary courts have been suspended, as during the US occupation of Mexico

during the Mexican-American War and the Union occupation of Southern states during and after

the Civil War (Kaplan, 1943: 124).

It should also be noted that the propriety of the use of military commissions constituted

under “proper circumstances” and governed by “appropriate rules and procedures” has been

beyond question for many years, and recognized by each of the three branches of government

(Kaplan, 1943: 123). Thus, the question before us is not whether military commissions are

constitutional in general; it is already well established that they are. The question facing legal

experts and policy makers today is whether or not the War on Terror qualifies as a “proper

circumstance,” and if so, what the “appropriate rules and procedures” governing the commission

proceedings should be.

Part I: An Historical Overview

Military Commissions in the US: 1776-1945

Though not recognized by law in the United States until 1862, military commissions were

practiced in the US long before that, justified and upheld by the common laws of war. The rules

and procedures governing these commissions were derived from international law, acts and

orders of military powers and recognized authorities, and international agreements dating back

centuries. The first recorded use of military commissions in the US was the trial of British major

John André, who was tried and convicted of spying by a panel of thirteen American generals,

including Nathaniel Greene, the Marquis de Lafayette, and Baron von Steuben (Kaplan, 1943:

121).
 Hoffman 4

Regular employ of military commissions did not occur until the Civil War, where they

saw varied and widespread use. Thousands of cases were heard by military commissions set up

in the Union’s western theatre of operations, most concerning the activities of so-called

“bushwhackers,,” who were ” irregular bands of pro-Confederate fighters frequently engaged in

banditry, who wore no military uniforms and were not organized in a regular way (Vagts, 2007:

38). During Reconstruction, these military tribunals were used to prosecute those who opposed

the Union occupation by violent means, such as the Ku Klux Klan and other secret “terrorist”

organizations. As the U.S. Army became involved in the actual governance of the South,

military commissions were used increasingly in cases involving non-military crimes and non-

military personnel, acting as legal stand-ins in states where the civil judiciary had collapsed

(Vagts, 2007: 39). For our purposesthe purposes of this paper, the most significant of these Civil

War cases was Ex Parte Milligan:, a habeas corpus petition heard by the Supreme Court in 1866.

Milligan was the first case in which the Court placed significant constitutional limitations on the

jurisdiction of military commissions, stating that no civilian could be tried by a military court in

areas where civilian courts were functioning and available (Kaplan, 1943: 124).

It wasn’t was not until World War II that military commissions again came into

widespread extensive use. Once again, theThe most significant of these cases was once again

heard by the Supreme Court, in Ex Parte Quirin (1942). This case is particularly significant in

discussing military commissions used in the War on Terror, as the proceedings in this case

served as a model for the commissions set up by President George W. Bush in November 2001

to try captured terrorists in the wake of the September 11th attacks (Vagts, 2007: 41).
 Hoffman 5

In a move that arguably should seem eerily familiar to US citizens ofwould go on to

resemble similar actions in the 21st century, President Franklin D. Roosevelt issued a

proclamation in 1942 stating that any person charged with committing or attempting to commit

warlike acts against the United States, or of with violating the laws of war, would be subject to

the jurisdiction of military tribunals (Kaplan, 1943: 136). The accused in the Quirin case were

eight German marines who landed in civilian clothing on beaches in New York and Florida with

intent to commit sabotage and espionage. They were tried and convicted by a military tribunal

convened under the president’s proclamation. The defendants appealed to the Supreme Court for

a writ of habeas corpus, charging that the commission proceedings had been invalid on several

grounds: first, that a military commission had no jurisdiction over the offenses charged; second,

that the commission had no jurisdiction over the petitioners themselves; third, that the

presidential proclamation was invalid; and fourth, that the proclamation conflicted with various

acts of Congress (Kaplan, 1943: 137). One of the petitioners was also a US citizen, who argued

that the commission had no jurisdiction over him in particular, under the Court’s ruling in Ex

Parte Milligan.

The Quirin case marked the first time anyone questioned under whose authority a

military commission could be convened. The Milligan case dealt only with a military

commission’s jurisdiction over civilians, although the Court had also maintained in that case that

it was “within the power of Congress to determine…the authorization of military tribunals,”

(quoted in Kaplan, 1943: 124). However, until Quirin, the ability of the president to convene

military tribunals had never been questioned; it had been assumed that the president’sthe ability

to do so was implied in histhe president’s authority as Commander-in-Chief of the armed forces.

 Hoffman 6

Nor had those tribunals’ jurisdiction over foreign combatants ever been doubted. The issue of

conflicting authority between Congress and the president had never been raised in this context.

In addressing the commission’s jurisdiction over the defendants, the Court argued that

Congress has the ability “to define and punish Piracies and Felonies committed on the high seas,

and Offenses against the Law of Nations” under Article 1, Section 8, Clause 10 of the U.S.

Constitution, and that the law of war had previously been recognized by the Court as being

included in the law of nations (quoted in Kaplan, 1943: 140). The law of war, the Court

continued, distinguishes between lawful and unlawful belligerents, a lawful belligerent being

entitled to detention under regulated arrangements, and an unlawful belligerent being subject to

trial by military commission for the acts rendering his or her belligerency unlawful (Kaplan,

1943: 140). Thus, the Court ruled, unlawful belligerents like the German marines were

recognized as offenders against the laws of war., Jurisdiction over offenses against the laws of

war was reserved to military commissions and under the Articles of War passed by Congress in

1916, and ((the forerunner to the Uniform Code of Military Justice, -the current body governing

US military law) passed by Congress in 1916. , jurisdiction over offenses against the laws of war

was reserved to military commissions. In addressing the one US citizen’s claim that the military

commission had no jurisdiction over his person, the Court ruled that the status of unlawful

belligerents does not change by virtue of citizenship, for citizens who associate themselves with

the enemy become enemy belligerents under the laws of war (Kaplan, 1943: 141).

The Court’s ruling in Quirin left several questions unanswered. It specifically did not

address, among other things, the constitutional authority of the president as Commander-in-Chief

to convene military commissions without Congressional sanction. In addition, neither the extent

of the jurisdiction of a military commission to try offenders against the laws of war, nor the
 Hoffman 7

enumeration of offenses that constitute such violations, was neverere ever discussed (Kaplan,

1943: 141). However, the ruling set a significant precedent very relevant to the War on Terror

and the U.S. use of military commissions today, by establishing an unlawful belligerent as an

offender against the laws of war, by making no distinction between such belligerents and any

U.S. citizens who side with them, and by confirming the jurisdiction of military commissions

over such belligerents. Even the Court’s decision not to address the questions discussed above

has relevance, as it is around many of these unanswered questions that the current controversy

has arisen.

Military Commissions in the Post-9/11 Era

Having thus established the historical and legal context surrounding the use of military

commissions in the U.S., we can now turn our attention to military commissions as they have

been used in prosecuting the War on Terrortheir use in prosecuting the War on Terror can now

be addressed. On November 13, 2001, nearly two months to the day after the devastating attacks

of September 11th, President George W. Bush issued a military order for the “Detention,

Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” which stated that

certain non-citizens of the US whom the president declared were were or had beenformer or

current members of al-Qaeda, or who had engaged in acts of international terrorism against the

United States, or who had sheltered members of such organizations, would be subject to military

detention and trial by military commission (Mundis, 2002: 320). A prison camp was established

at the US naval base at Guantánamo Bay, Cuba, to hold these detainees.

The tribunals set up as a result of this order were specifically designed not to adhere to

the standards set for such tribunals under both the Geneva Conventions of 1949, of which the

United States is a signatory, or the Uniform Code of Military Justice, passed by Congress in
 Hoffman 8

1950. Such protections guaranteed by those two bodies, the government argued, did not apply to

the detainees held at Guantánamo Bay, as they were unlawful belligerents and so not entitled to

the same protections afforded traditional prisoners of war. The commissions at Guantánamo

were further declared to be outside the jurisdiction of the federal court system, denying the its

detainees held there the right to appeal for a writ of habeas corpus (Mundis, 2002: 322).

As word of the tribunals gradually leaked to the public, questions were broached over a

number of legal and humanitarian issues. Concern The public s were raised concerns over the

denial of habeas corpus and the right of appeal, as well as over allegations that many of the

detainees’ confessions had been forcibly coerced, in violation of both domestic and international

law. Lastly, was the issue left over from the Quirin case some sixty years earlier: that of the

president’s constitutional authority to convene military commissions without the sanction of

Congress. Particularly at issue in this instance was whether the president could unilaterally

convene military commissions that actually violated previous acts of Congress, in this case, the

Uniform Code of Military Justice.

Since 2001, the Supreme Court has attempted to address some of these issues. In Rasul

v. Bush (2004), the Court ruled that the right to habeas corpus did, in fact, apply to the detainees

at Guantánamo Bay, despite their foreign status and the fact that they were being held outside the

United States (Martin, 2007: 349). Most significantly, in Hamdan v. Rumsfeld (2006), the Court

struck down the military commissions set up by the presidential order on statutory grounds,

arguing that the commissions violated Article 21 of the Uniform Code of Military Justice, which

requires any military tribunals convened by the president to conform to the laws of war. The

Court argued that bBecause the tribunals violated both the Uniform Code of Military Justice and

the common Article 3 of the Geneva Conventions (which provides protections for captured
 Hoffman 9

enemy combatants and prisoners of war), the Court argued, Congressional sanction was needed

to sustain them (Martin, 2007: 350). It should be noted that However, the Court’s ruling in

Hamdan did not strike down the use of military commissions in the War on Terror, nor did it

address the rights violations that had been perpetrated under the commissions; what the ruling

did, in essence, was to remand the matter to Congress (Martin, 2007: 349).

Congress obliged responded three months later by passing the Military Commissions Act

of 2006 (MCA). The Act essentially gave offered what the Court had said ruled was lacking

needed to sustain military tribunals in the Hamdan case: Congressional authorization for the

tribunals set up under the 2001 presidential order. It provideds the president the authority to

convene military commissions to try unlawful enemy combatants for violations of the laws of

war, and establisheds basic rules and procedures to govern the trials (Vázquez, 2007: 79).

However, the Act, like the Court’s ruling in Hamdan, still failed to address violations and the

potential for violations of the rights of detainees, by essentially allowing the executive branch to

interpret and apply the common Article 3 however it chose. The ramifications of these problems

will be addressed later in this paper.

Part II: An Analysis of Military Commissions in the War on Terror

Can Military Commissions Be Applied to the War on Terror?

As stated at the beginning of this paper, the question before us is whether or not military

commissions can be used legitimately in the War on Terror, and if so, what constitutional or

legal limits apply or should be placed on the use and conduct of such commissions. Having

examined both the historical and present use of military commissions, their applicability in the

context of the War on Terror we can begin tocan now be understanood their applicability in the

context of the War on Terror.

 Hoffman 10

The first criterion we mustto be examined in determining whether military commissions

can be applied to the War on Terror is, of course, the “war” aspect of the fight against

international terrorism. Military commissions by definition are used during wartime, to try

members of enemy forces. It must be decided then, whether the War on Terror actually qualifies

as a war; if so, then the use of military commissions to try members of enemy forces—members

of terrorist groups—would might seem appropriate. Does theAn assessment of the War on

Terror demonstrates that it does fulfill this requirement. War on Terror fulfill this requirement?

The answer is yes. In hindsight, the cumulative chain of attacks carried out by al-Qaeda

against American targets in the 1990s—the 1993 ambush of American soldiers in Mogadishu;

the 1993 truck bombing of the World Trade Center (which, incidentally, was intended to bring

both towers down); the 1995 bombing of a U.S. military training center in Riyadh, Saudi Arabia;

the 1996 bombing of the Khobar Towers in Dhahran, Saudi Arabia; the simultaneous 1998

bombings of the US embassies in Kenya and Tanzania; and the 2000 bombing of the USS Cole

in Yemen—seems to fit the definition of war: a state of open and hostile conflict between two

parties (Wedgwood, 2002: 330). Al-Qaeda has even officially declared war on the United

States;: after the bombings of the embassies in 1998, al-Qaeda leader Osama bin Laden called

for, “every Muslim in every country…to kill and fight Americans and their allies, whether

civilian or military” (quoted in Oren, 2007: 577). Al-Qaeda’s open and declared intent to find

and use a nuclear weapons against the US and its allies also seems tomight suggest that a war

model is appropriate.

Rightly or wrongly,The the American response to al-Qaeda’s attacks look likefits the

description of a war as well. The 2001 invasion of Afghanistan and the 2003 invasion of Iraq—

carried out in the name of combating international terrorism— involved the massive mobilization
 Hoffman 11

of U.S. military forces into those countries, and in the case of Afghanistan, the mobilization of

international forces as well. The aftermath of 9/11 and the ensuing war in Afghanistan

represented the first time ever in the history of the North Atlantic Treaty Organization (NATO)

that Article 5 of the organization’s charter—which states that an attack on a member state

constitutes an attack on all member states—was invoked (Wedgwood, 2002: 330). Even as if

these wars draw to a close—combat operations in Iraq were officially declared at an end as of

Autumn this fall2010, and domestic political pressure to withdraw US troops from Afghanistan

is ever increasing—the fight against al-Qaeda remainspersists, and if given its history is any

indicationin the area, the US will is likely to continue to carry out this fight according to a war

model.

Neither does the lack of an official Congressional declaration of war make any difference

in determining whether or not the War on Terror can be considered a “true” war. Under the 1949

Geneva Conventions, the laws of war apply in any “state of armed conflict” (quoted in

Wedgwood, 2002: 335). Congress itself has clearly demonstrably authorized the use of force in

combating terrorism , in Iraq, Afghanistan, and elsewhere, as it has continued funding these

operations since the “war” on terrorism began, officially or unofficially, in 2001. Thus, as long

as the US remains in a state of armed conflict with al-Qaeda and other terrorists, and as long as

these groups continue to wage a self-declared war against the United States and its allies,

considering the War on Terror under a war model is appropriate.

However, a state of war is not the only requirement that must be met for the use of

military commissions to be appropriate. Military commissions are primarily used to try

combatants for violations of the laws of war. The next question we must examine thento
 Hoffman 12

examine then, is whether terrorist acts can be considered crimes against the laws of war.

Evidence suggests that in this case they are.

Once again, the answer is yes. The US is justified in considering al-Qaeda terrorists

“unlawful” belligerents, as al-Qaedathey fails to fulfill four of the requirements of lawful

belligerency: it hasthey have no responsible commander, as it isthey are organized in a loose

network of independent cells not answerable to any overall command or leader; its their

operatives have no distinctive and visible insignia, nor do they carry their arms openly; and it

they fails to observe the laws and customs of war (Wedgwood, 2002: 335). One of these

customs is, of course, the principle of distinction, which prohibits the deliberate targeting of

civilians and other non-combatants. By its own admission, al-Qaeda leadership purposefully

violates this principle; its published doctrine declares that Western civilians are just as guilty as

American and Israeli political and military leaders, and calls on its followers to attack civilians

indiscriminately (Wedgwood, 2002: 329).

The violation of the distinction principle is a prima facie violation of the laws of war; any

violators of this provision are automatically subject to trial by military commission.

Furthermore, according to the Supreme Court’s ruling in Quirin, unlawful belligerents may be

considered violators of the laws of war, and as such, may also be tried by military commission.

As admitted violators of the distinction principle and as unlawful belligerents, al-Qaeda terrorists

are doubly damnedsubject to trial by military commission by two different legal justifications.

Either way, under both U.S. and international law, captured members of al-Qaeda are subject to

the jurisdiction of military commissions.

Thus, bBecause the War on Terror can be considered an armed conflict, and because

terrorists can be considered violators of the laws of war, it is entirely appropriate to try captured
 Hoffman 13

terrorists by military commission. However, there are also other, more practical considerations

that make trial by military commission a useful tool in prosecuting the War on Terror, and all

involve the difficulty of prosecuting terrorists in civilian courts.

There are several problems with trying terrorists in the civilian court system. First are the

problems concerning evidence: the exclusionary rule bars the use in court of any evidence found

to have been acquired illegally by federal authorities. Under ordinary circumstances this rule is

quite properwidely accepted, and is indeed,considered a cornerstone of the American legal

system. However, it can be problematic in considering cases of terrorism, as much of the

evidence and information concerning an individual’s involvement in terrorist plots comes to us

fromis obtained by secret intelligence information gathered by means considered “illegal” under

civilian evidentiary rules. This is particularly true in cases concerning terrorist operatives

captured abroad. U.S. law provides legal channels for the acquisition of domestic intelligence,

through courts convened under the Foreign Intelligence Surveillance Act of 1978 (known as

“FISA courts”), but no such legal channels exist when it comes to foreign intelligence gathered

abroad; espionage by its very nature is an “illegal” means of acquiring information. Yet some of

our the most crucial information concerning terrorism and an individual’s involvement in

terrorism comes to us from this source; the fact that this information is then excluded from use in

federal court, and rightfully so, suggests that the civilian court system is perhaps not an

appropriate place to try such cases. Doing soTrial in civilian courts presents us judges with a

dangerous choice: either to allow the use of evidence that under civilian evidentiary rules is

considered illegal, and in so doing set a dangerous precedent undermining the principle behind

the exclusionary rule; or to uphold the exclusionary rule and prohibit the use of important

evidence, potentially failing to try a guilty terrorist.allowing a terrorist to walk free.

 Hoffman 14

Trial by military commission solves this dilemma. HereIn military commissions, most

intelligence information may be presented legally, without fear of undermining the exclusionary

rule. A military commission would also ensure the security of such information. Even if secret

intelligence could be allowed in civilian court, such information would then be available to both

the defendant and the public, which could compromise tradecraft methods and intelligence

sources. Evidentiary rules concerning chain of custody and authentication could also be

problematic; evidence acquired in a battlefield setting, where witnesses may be scattered or

deceased, might not stand up to these requirements (Wedgwood, 2002: 331). Military law,

unlike civilian law, is designed to deal withaccount for these problems.

Second is the problem of securing and protecting the trial itself. Usually, the safety of the

judges, jurors, and attorneys involved in civilian criminal trials is not an issue, but in cases

involving al-Qaeda members, concerns have been raised about the difficulty of protecting such

individuals, and the integrity of the trial itself, from reprisals by those members of al-Qaeda still

roaming freeoutside the trial. During the trial of the men accused of carrying out the World

Trade Center bombings in 1993, guards with automatic weapons had to be stationed around the

courthouse in downtown Manhattan; the federal judges handling the case were provided with

twenty-four hour protective details, and have had such details ever since. In the aftermath of

these trials, al-Qaeda members carried out several attacks abroad in retaliation (Wedgwood,

2002: 331). It is certainly not beyond the realm of possibility that such reprisals could occur

again, and perhaps within the US itself, in the event of another public trial of a member of al-

Qaeda or some other violent terrorist organization.

The idea of convening an international trial—similar to the war crimes tribunals

convened by the United Nations Security Council in the cases of Rwanda and the former
 Hoffman 15

Yugoslavia—has also been presented as an alternative to military commissions, but such trials

would face many of the same problems concerning the admissibility of evidence, the security of

intelligence information, and the safety and security of the trial and its participants (Wedgwood,

2002: 332). To these problems a third complexity would also be added: that of international

politics. Such an international tribunal would likely wish to include representatives of the

Muslim world, to guard against cultural bias as well as to enhance the legitimacy of the

tribunal’s verdict in the eyes of the Muslim nations world. Yet few Arab or Muslim countries

could nominate a judge to serve on the tribunal without fear of reprisal from either their own

militant factions or from al-Qaeda itself; Osama bin Laden has already announced that any

Muslim government that cooperates against him will be considered an enemy of the Ummah

(Wedgwood, 2002: 332). There is also a question regarding Israel’s place on such a tribunal.

Al-Qaeda’s declaration of war included Israel as well as the United States; this should,

theoretically, accord Israel a place in the proceedings. But such a move would doubtless raise

controversy in the international arena, likely evoking the ire of other Middle Eastern participants.

This too, would impede the proceedings of any trial set up (Wedgwood, 2002: 333).

Thus, in addition to theoretical and legal reasons, using military commissions to try captured

terrorists makes practical sense as well. However, a caution: just because we haveit has been

determined that the use of military commissions is appropriate to the War on Terror does not

mean that the US has used them appropriately. There are problems with the way the US has

conducted such commissions, many of which are codified in the Military Commissions Act of

2006 (MCA). These problems have the potential to create—and indeed, have already created—

legal and political ramifications that could negatively impact US interests abroad, including US

counterterror operations.
 Hoffman 16

Implications and Ramifications of the Military Commissions Act

The Supreme Court’s decision in Hamdan v. Rumsfeld (2006) struck down the military

commissions convened under the 2001 presidential order for being inconsistent with the Uniform

Code of Military Justice and the laws of war, including the Geneva Conventions, as incorporated

in that statute. The MCA was Congress’s attempt to provide the president with the legal

framework with which tofor conducting the commissions at Guantánamo Bay, in a way that

would hold up to judicial scrutiny. However, as has already been stated, the Act failed to address

the fundamental problems surrounding the original commissions.

The first problem, of course, is the treatment of detainees in U.S. custody. When

President Barack Obama first took office, he ordered the suspension of the commission

proceedings at Guantánamo Bay, until the practice could be reviewed, and until it could be

determined whether or not it was possible to try the detainees held there in civilian courts. We

have already discussed why it may be difficult to do soThe difficulty of trying terror suspects in

civilian courts has already been argued earlier in this paper. The administration apparently

reached a similar conclusion, as the commissions were resumed in the middle of 2009;, although

in doing so, President Obama also stated that detainees would be tried in federal civilian courts

whenever possible. The MCA was amended under the Military Commissions Act of 2009, to try

to make the tribunals set up at Guantánamo Bay slightly more palatable to both the judiciary and

the public. However, this amendment seems to be in name only, as the updated version of the

MCA contains few additional provisions to protect the rights of detainees.

It is true that unlawful enemy combatants, such as captured terrorists, are not entitled to

all the protections afforded prisoners of war under the common Article 3 of the Geneva

Conventions; however, they are still entitled to basic protections considered fundamental to a
 Hoffman 17

civil society. The MCA provides only the barest protections required under the common Article

3, and these it does not protect them very successfully. The MCA’s standards for the

interrogation of detainees are perhaps the perfect example. While the Act does provide

prohibitions against the cruel, inhuman, or unusual treatment or punishment of all those in U.S.

custody, regardless of nationality or location, it leaves the door open forallows for the possibility

of admissible evidence to be obtained through varying degrees of coercion forbidden under the

Geneva Conventions, by giving the president the power to approve interrogation methods based

on his or her own interpretation of the common Article 3 (Beard, 2007: 58). As we have

seenpast actions suggest, the executive branch has had a tendency to take a rather expansive view

of what constitutes permissible interrogation methods: water boarding, stress positions,

“humiliating and degrading treatment,” and the likeet cetera. The MCA—and its subsequent

amendment in 2009— allows information obtained through such methods to be used at trial,

trampling over law of war provisions contained in the Geneva Conventions that had previously

been viewed as imposing absolute prohibitions against such treatment (Beard, 2007: 59).

Quite aAside from potentially violating our owncultural principles regarding human

rights, such provisions in the MCA could have wide-reaching legal and political ramifications

overseas for the US abroad. The U.S. ability to succeed in the War on Terror depends

increasingly on the cooperation we it receives from international allies. In order to be successful

in finding, tracking, capturing, detaining, interrogating, transferring, and extraditing terrorists,

the US requires the use of foreign military facilities and intelligence assets, and foreign approval

of certain aspects of U.S. counterterrorism policy. In times past, the US enjoyed received

considerable international support, and could undertake such activities on foreign soil with very

little scrutiny (Beard, 2007: 69). That is no longer the case. The highly publicized reports
 Hoffman 18

concerning the abuse of detainees in U.S. custody; the detention without trial, in some cases for

years, of suspected terrorists in secret prisons; and the seizure and rendition of terror suspects to

countries where they are subjected to torture or harsh interrogation techniques, have considerably

undermined public support for the US in countries upon which the US must depend for

assistance in the War on Terror,. These strained international relationships could potentially

jeopardizing jeopardize future counterterrorist operations by the US (Beard, 2007: 72).

The MCA is also problematic in that it has effectively redefined combatancy—a concept

fundamental to the laws of war—in an attempt to capture not only suspected terrorists, but those

thought to be giving support to terrorists (Beard, 2007: 59). Under the MCA, an unlawful

belligerent is now defined not only as someone “directly engaged in hostilities against the United

States,” but also as someone who “has purposefully and materially supported hostilities against

the United States” (quoted in Beard, 2007: 59). In addition to raising concerns over how this

provision may be applied to the activities of ordinary citizens living in the US, this definition

also creates problems in the context of the laws of war, by blurring the distinction between

combatants and noncombatants (Beard, 2007: 60).

The MCA revises the laws of war as embodied in the Geneva Conventions, by

reinterpreting the protections guaranteed captured combatants (contained in the common Article

3), and by redefining combatancy itself. As a great power with global military interests, the US

has powerful incentives to participate in formulating, supporting, and strengthening the Geneva

Conventions and the laws of war. Such legal provisions promote the rule of law, provide for the

protection of captured U.S. military personnel, and more generally promote the respect for

human rights that has always been a part of the U.S. international policy agenda (Beard,

2007:64). Yet the MCA’s revision of key principles of the laws of war severely undermines the
 Hoffman 19

credibility of U.S. commitment to the Geneva Conventions. As Due to its status as a world

power, the US has the ability to influence the actions of others in the international system simply

by leading by example. If the US fails to support its commitment to the Geneva Conventions

and the laws of war—as it has done with the MCA—other countries are likely to follow suit in

relaxing the stringency of their own commitments, which could have future consequences for

U.S. military operations and U.S. military personnel (Beard, 2007: 66).

Lastly, and perhaps most importantly, the manner in which the US has used military

commissions to prosecute the War on Terror violates our the US’ own fundamental principles.

Our U.S. legal philosophy rejects the principal of inter arma silent leges: among arms, the laws

fall silent. In other words, we it rejects the notion that during wartime, or times of national crisis,

our laws and principles go out the windowno longer apply. The Constitution—the lex suprema

of this the United Statescountry—does not only apply during peacetime;, it always applies

always. The principles of Habeas corpus and, the protection of human rights: these principles

are enshrined in the Constitution; they are the bedrock on which this country was founded. They

must always be respected to remain consistent with U.S. legal philosophy.

In his dissenting opinion in the World War II case Homma v. Patterson (1946), Supreme

Court Justice Frank Murphy objected to the use of forced confessions, and the general violation

of detainee rights, that occurred during the trials by military commission of Japanese soldiers for

violations of the laws of war. His observations and reflections on the misuse of such

commissions, and the potential impact of such abusive policies on American society, are

unnerving if they are eerily prescient, and offer a powerful perspective from which to consider

such actions that is absolutely relevant to the case of military commissions in the War on Terror.

They are as follows:

 Hoffman 20

…Neither clearer proof of guilt nor the acts of atrocity of the Japanese troops [can]
excuse…the promulgation of a directive containing such obviously unconstitutional
provisions as those approving the use of coerced confessions or evidence and findings of
prior mass trials. To try the petitioner in a setting of reason and calm, to issue and use
constitutional directives to obey the dictates of a fair trial are not impossible tasks.
Hasty, revengeful action is not the American way. All those who act by virtue of the
authority of the United States are bound to respect the principles of justice codified in our
Constitution. Those principles, which were established after so many centuries of
struggle, can scarcely be dismissed as narrow artificialities or arbitrary technicalities.
They are the very life blood of our civilization.

Today the lives of…leaders of enemy forces vanquished in the field of battle are taken
without regard to due process of law. There will be few to protest. But tomorrow the
precedent here established can be turned against others. A procession of judicial
lynchings without due process of law may now follow. No one can foresee the end of
this failure of objective thinking and of our adherence to our high hopes of a new world.
The time for effective vigilance and protest, however, is when the abandonment of legal
procedure is first attempted. A nation must not perish because, in the natural frenzy of
the aftermath of war, it abandoned its central theme of the dignity of the human
personality and due process of law. (Quoted in Vagts: 2007, 42-43)

In allowing military commissions to prosecute captured terrorists using coerced

confessions and, in denying these detainees the basic protections contained in the common

Article 3 of the Geneva Conventions and in our own the U.S. Constitution, we arethe United

States is essentially abandoning the principles that are, as Justice Murphy stated, “the lifeblood

of our [its] civilization.” In other words, we have gone too far.

III. Conclusion

We haveIt has been determined that military commissions may be legitimately used in

the War on Terror, as al-Qaeda terrorists are unlawful belligerents who violate the laws of war,

and as such, are subject to the jurisdiction of military commissions. However, in order to be

maintain legitimacyte, such commissions must themselves uphold both domestic and

international laws and principles. The MCA, and more generally, the policies surrounding the

conduct and proceedings of the military tribunals used in the War on Terror, fail to do this. In

factOn the contrary, they defy the very principles they are being used to protect, in a manner
 Hoffman 21

which has potentially dangerous implications for the US, by undermining the democratic ideals

upon which this countrythe US was built, and thereby potentially compromising U.S. strategic

interests and operations abroad.

While military commissions can be a useful and effective tool in prosecuting the War on

Terror, this paper has asserted that they must be applied according to the principles of due

process and with respect for human rights and the laws of war. The US has historically afforded

its enemies the same civil and legal protections as its own citizens—as far back in its national

history as the trial and acquittal of the British soldiers charged in the Boston Massacre comes to

mind—because it regards these protections as being necessary to a free, and just society. If we

forget this is forgotton in the current crisis, we will have lost the best part of ourselves.these

societal values will not be supported.

 Hoffman 22

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