On September 11, 2001, the hijacking of four commercial airliners resulted in the death of over 3,000 innocent civilians. Congress reacted swiftly and, on September 18, issued the "Joint Resolution to Authorize the Use of United States Armed Force Against Those Responsible for the Recent Attacks Launched Against the United States"--the AUMF. The AUMF states, in part, that "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."
On November 13, 2001, President Bush issued a Military Order authorizing the Department of Defense to establish military commissions to bring to justice those non-citizen members or supporters of Al Qaeda that threaten the security of America and the world.
Although the President's Military Order does not spell out the specific, individual procedures guaranteed to accused, the Order guarantees accused the right to a "full and lair" trial and provides for further orders and instructions to implement the Order. Since that time, several military commission orders and instructions have been promulgated, affording accused the presumption of innocence, requirement of proof beyond a reasonable doubt, and a full defense. Most recently, the Department of Defense promulgated Military Commission Instruction Number 10, an order that explicitly excludes from evidence statements obtained by torture. Although the requirement of a full and fair trial arguably includes and mandates this exclusion, this Order was promulgated to address any ambiguity regarding admissibility of such statements.
Military commissions have been challenged as being convened without authority, creating offenses that are not cognizable under the laws of war, and implementing rules of procedure that deprive an accused of fundamental rights. I'll address each of these challenges in turn.
The President's authority to implement 9/11 military commissions is based on his inherent authority under the Constitution as the commander in chief of this nation's armed forces, and Congress' recognition of that authority in the AUMF, Articles 21 and 36 of the Uniform Code of Military Justice, and the Detainee Treatment Act of 2005.
The Constitution provides several bases for establishing military commissions. The Constitution authorizes Congress to convene military commissions. Under Article 1, Congress has the power to declare war, to "define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations," to "make rules for the Government and Regulations of the land and naval forces," and to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers."
The Constitution also authorizes the President to convene military commissions. Under Article 2, the President, as the commander in chief, is authorized to convene military courts and tribunals pursuant to his wartime powers. This authorization is consistent with historical practice. Since the formation of our republic, the President and other military commanders have convened military commissions; they were convened during the War of 1812, the Mexican-American War, the Civil War, the Philippine Insurrection, the Spanish-American War, and War World II. More importantly, many of these commissions were convened without congressional authorization specifically directing or ordering military commissions.
In 1942 the Supreme Court case addressed the President's authority to convene military commissions in Ex parte Quirin. Eight German saboteurs covertly entered the United States to blow up factories and bridges, and were captured. The President convened military commissions to try the saboteurs on charges of violations of the law of war, conspiracy, and violation of the Articles of War by aiding the enemy, and spying. The accused challenged the legality of the military commissions and attacked the subject-matter jurisdiction of the commissions. The Supreme Court recognized that Congress authorized the President to convene military tribunals in accordance with the law of war pursuant to Article 15 of the Articles of War then in effect. The Court, however, made clear that it was not determining whether the President could constitutionally convene military commissions without Congressional support. That issue was not before the Court then, and it is not before the Court now in the case of Hamdan.
Article 15, relied upon by the Supreme Court in the case of Quirin, is incorporated in nearly identical language by Article 21 of the current UCMJ. More importantly, when Congress enacted the UCMJ in the 1950s and recodified the language of Article 15, Congress acted with full awareness of and acquiescence in the holding in Quirin--that Article 15...