Solving the due process problem with military commissions.

• Author: Stephanopoulos, Nicholas

The terrorist attacks of September 11, 2001 prompted the creation of two new adjudicatory bodies within the Department of Defense. First, military commissions were established by presidential order just two months after the attacks in order to prosecute members of al Qaeda for war crimes. (1) The commissions are non-Article III courts (although they adhere to many aspects of conventional criminal procedure) and are empowered to try persons designated by the President as eligible for trial by commission for offenses against the laws of war. No trials have yet taken place, although commissions for four detainees have been convened, and fifteen detainees have been designated for trial. (2) Second, combatant status review tribunals (CSRTs) were created in the wake of Hamdi v. Rumsfeld (3) to determine if detainees at Guantanamo Bay are being properly held as enemy combatants. (4) A plurality of the Supreme Court held in Hamdi that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." (5) The CSRTs aim to provide that "fair opportunity" to individuals who the government alleges are enemy combatants and hence subject to detention until the end of hostilities.

This Comment's principal goal is to explore the interplay between the military commissions and the CSRTs. A plethora of law review articles have dealt with military commissions, (6) and the CSRTs have been covered at length in the press. (7) There has been almost no effort, however, to analyze how the two institutions fit together or how the lessons of one could be used to solve the potential constitutional problems of the other. This Comment seeks to fill that gap. In particular, it argues that there is a serious constitutional flaw in the military commissions' procedure for establishing personal jurisdiction and that, in an ironic twist, this flaw can be mended through a modest broadening of the scope of the CSRTs' fact-finding powers.

Part I describes the looming due process problem with the military commissions: that there is currently no mechanism by which individuals who dispute their eligibility to be tried by commission can resolve this jurisdictional issue. This Part argues that this aspect of the commissions' procedure is unconstitutional under case law on both Article III personal jurisdiction and unilateral executive designations. Part II contends that this due process problem can best be solved by expanding the decisionmaking range of the CSRTs. Rather than merely determining whether a detainee is an enemy combatant, the CSRTs should also decide whether a detainee found to be an enemy combatant is a lawful combatant, immune from trial by military commission, or an unlawful combatant, subject to such trial. Part II also argues that the CSRTs are better positioned to make this determination than either conventional courts or the military commissions themselves. Part III concludes.

I

Critics have identified a host of potential legal problems with military commissions. Commissions may offend the principle of separation of powers because they were not explicitly authorized by Congress, they may violate the Equal Protection Clause because they are applicable only to noncitizens, they may contravene provisions of the Uniform Code of Military Justice, and they may be illegal under the Geneva Conventions. (8) One problem with military commissions that has not been extensively analyzed, however, is the jurisdictional one: At present, a detainee has no opportunity to challenge the President's determination that he may be tried by commission. (9)

Under the Military Order that created the military commissions, not everyone is subject to trial by commission for offenses against the laws of war. Rather, the Order applies only to noncitizens who the President determines (1) are current or past members of al Qaeda, (2) have been involved in acts of international terrorism directed at the United States, or (3) have knowingly harbored such persons. (10) The personal jurisdiction of military commissions is further limited by Ex parte Quirin, which held that only unlawful combatants "are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." (11) Under Quirin and the Military Order, therefore, military commissions, unlike conventional criminal courts, do not have personal jurisdiction over all alleged criminals in the territory they cover. Rather, to be subject to trial by military commission, an individual must both fit within one of the categories of persons identified in the Military Order and, as required by Quirin, be an unlawful combatant.

The due process problem with the post-September 11 military commissions, then, is that they provide no mechanism for a defendant who contests his commission's personal jurisdiction over him to effectuate that protest. (12) The President alone determines that an individual is subject to the Military Order, and upon that determination the individual may be tried for war crimes even though he denies that he is an unlawful combatant or that he meets the Order's three criteria for eligibility. (13)

Two...