Trying terrorists: the case for expanding the jurisdiction of military commissions to U.S. citizens.

Author:Kittel, Larkin

TABLE OF CONTENTS I. INTRODUCTION II. HISTORY AND DEVELOPMENT OF THE MILITARY COMMISSIONS ACT A. Comparison of Military Commissions and Article III Courts. III. JUSTIFICATIONS FOR USING MILITARY COMMISSIONS IN THE UNITED STATES IV. MILITARY TRISUNALS ABROAD: THE ISRAELI EXAMPLE V. WHY CONGRESS LIMITED THE MILITARY COMMISSIONS ACT TO PROSECUTION OF NONCITIZENS VI. THE MILITARY COMMISSIONS ACT, AS WRITTEN, VIOLATES EQUAL PROTECTION A. The Military Commissions Act Violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution B. The Military Commissions Act Violates Equal Protection under International Law VII. POTENTIAL REFORMS A. Proposal I: Exclusive Use of Article III Courts Without Regard to Citizenship B. Proposal II: Exclusive Use of Military Commissions Without Regard to Citizenship C. Proposal III: Use of Both Military Commissions and Article III Courts Without Regard to Citizenship 1. Proposal III Provides the Government with a Choice Between Forums 2. Proposal III Resolves the Equal Protection Problem 3. Proposal III Provides Congress with an Incentive to Improve Military Commission Procedure VIII. CONCLUSION I. INTRODUCTION

The debate surrounding the use of military commissions in the United States can be characterized as a tug-of-war between competing needs: the protection of national security and the preservation of the integrity of the American judicial system. It is no secret that military commissions convened pursuant to the Military Commissions Act (1) provide fewer procedural protections to defendants than do Article III courts. (2) For example, there is no right to a speedy trial by military commission. (3) There is no right to a trial by jury; rather, defendants are tried before a military judge and a commission of five to twelve members. (4) In non-death penalty cases, a commission can convict a defendant without a unanimous verdict from the commission members. (5) Only two-thirds of the members must vote guilty to obtain a conviction. (6) Evidence seized abroad may be admissible even if it was obtained improperly. (7) Also, coerced admissions by defendants may be admissible. (8)

Arguably, the less stringent procedural protections offered by military commissions help to address some of the practical difficulties that surround the prosecution of terrorist suspects. For example, a portable military forum may be preferable to a public civilian jury trial where there is a concern that the court may become a target of terrorism. (9) There might also be a special need for secrecy where evidence obtained by foreign intelligence relating to U.S. national security is involved. (10) Additionally, it may be difficult to ensure that evidence was obtained properly amidst the chaos of an ongoing international counter-terrorism operation. (11)

The legitimacy of the rationales for these procedural differences is undermined by one of the less controversial--yet egregiously discriminatory-- aspects of the Military Commissions Act. The Military Commissions Act explicitly reserves the less protective forum it creates for the prosecution of noncitizens. (12) The purpose of this Note is to explore whether there is a legal or logical justification for limiting jurisdiction of military commissions to noncitizens. Ultimately, this Note argues that no such justification exists.

Part II of this Note discusses the background and development of the Military Commissions Act. While there has been some marked improvement in the procedural protections provided by military commissions since they were first authorized in 2006, there are still important, meaningful differences between Article III courts and military commissions. This Note examines these differences and concludes that military commissions are procedurally inferior to Article III courts.

Part III analyzes the justifications for using military commissions in the United States. If the differences between military commissions and Article III courts were insignificant, there would be no reason to preserve a dual jurisdictional system. From a practical standpoint, less stringent procedural protections provide an obvious benefit to government prosecutors. The availability of an alternate forum in which the government can try a suspected terrorist without being subject to the rigorous procedure required by Article III courts may help prosecutors cope with the exigencies that arise in war. Perhaps more importantly, military commissions may also protect the integrity of Article III courts by handling cases that, because of their controversial nature, could lead to bad precedent. This Note argues that the challenges that military commissions are designed to address are not affected by the citizenship of the accused. Rather, the advantages of military commissions are derived from the characteristics of the forum.

Part IV of this Note examines the approaches that other countries have taken to address the problems associated with the prosecution of terrorists. In particular, this Section looks to the Israeli Military Court system, which parallels the U.S. military commission system because these military courts are exclusively used to try Palestinian residents of the Occupied Territories while Israeli residents of the same territory are tried solely in civilian courts. (13) This Note concludes that while the United States is not the only country to limit the use of a military forum based on citizenship, (14) limitation of jurisdiction to noncitizens is unlawful (15) and undermines the perception of legitimacy of the forum as a whole.

Part V examines U.S. Congress's decision to limit military commission jurisdiction to noncitizens. If, as many proponents of military commissions have argued, it is true that military commissions are necessary to promote national security and to preserve the American way of lire, (16) then there must be some reason to drastically limit their use. This Note argues that the reason that military commissions are statutorily limited to noncitizens is not a legal one. Instead, there is political resistance to trying U.S. citizens in military commissions due to the--arguably accurate--perception that the procedures offered are constitutionally inadequate. Without a principled reason to limit jurisdiction, use of a procedurally inferior forum based solely on alienage violates equal protection under domestic and international law.

Part VI examines the Military Commissions Act from both a constitutional law and international law perspective. This Note concludes that the Military Commissions Act poses clear equal protection problems under both frameworks. Part VII explores three possible solutions that would resolve the equal protection problems posed by limiting jurisdiction of military commissions to noncitizens. First, Congress could ban the use of military commissions altogether and try all terrorist suspects in Article III courts regardless of citizenship. A second, more radical solution, would be to extend military commission jurisdiction to citizen unprivileged enemy belligerents and to require prosecution of all unprivileged enemy belligerents in military commissions. This would remove Article III jurisdiction over certain kinds of terrorism-related war crimes and would make military commissions the sole forum for prosecuting those offenses. A third solution would be to extend jurisdiction to citizen unprivileged enemy belligerents while maintaining a jurisdictional choice for the U.S. government.

Ultimately, this Note argues that the third option, the continued use of both criminal and military tribunals, should be adopted. First, the continued use of two forums allows the government to make strategic choices based on the circumstances of each case. Second, this proposal protects the integrity of Article III proceedings by removing the temptation for judges and jurors to legitimize government behavior that is tainted by the exigencies of war in order to obtain a conviction. Third, continued use of both criminal and military tribunals also resolves the equal protection problem by providing the same set of procedural consequences for the same crimes regardless of citizenship. Finally, it may also serve as a mechanism for improving the procedure in military commissions, since citizens would also be subject to those procedures.


    In order to fully understand the controversy surrounding the use of military commissions, one must have a general knowledge of the history and development of the Military Commissions Act. The enactment of the Military Commissions Act of 2006 was an overt effort by Congress and the White House (17) to circumvent the Supreme Court's decision (18) in Hamdan v. Rumsfeld, (19) which invalidated the highly criticized (20) military tribunals convened by the President's Military Order of November 13, 2001. (21) When Congress passed the Military Commissions Act, it established military commissions and took several "rather crude" (22) steps to ensure that many of the concerns of validity raised by the Supreme Court in Hamdan v. Rumsfeld would be addressed.

    First and foremost, Congress provided independent statutory authority for the establishment of military tribunals to try alien unlawful enemy combatants for violations of the law of war and for the offenses enumerated in the stature. (23) From there, Congressional actions became somewhat dubious. For example, the Military Commissions Act of 2006 contained provisions designed to strip U.S. courts of jurisdiction to hear habeas petitions. (24) Congress also provided that persons prosecuted under the Military Commissions Act could not "invoke the Geneva Conventions as a source of rights" (25) and that military commissions would be deemed to be "regularly constituted tribunals" with procedures that met "the demands of 'civilized people'" as required by Common Article 3 of the Geneva...

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