Scope of Presidential Power: Military Commissions—America’s Domestic War Crimes Court

Abstract

On September 11, 2001, hijacking of four commercial airliners resulted in death of over 3,000 innocent civilians. Congress reacted swiftly and, on September 18, issued Joint Resolution to Authorize Use of United States Armed Force Against Those Responsible for Recent Attacks Launched Against 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 terrorist attacks that occurred on September 11, 2001. On November 13, 2001, President Bush issued a Military Order authorizing Department of Defense to establish military commissions to bring to justice those non-citizen members or supporters of Al Qaeda that threaten security of America and world. Although President's Military Order does not spell out specific, individual procedures guaranteed to accused, Order guarantees accused right to a and lair trial and provides for further orders and instructions to implement Order. Since that time, several military commission orders and instructions have been promulgated, affording accused presumption of innocence, requirement of proof beyond a reasonable doubt, and a full defense. Most recently, Department of Defense promulgated Military Commission Instruction Number 10, an order that explicitly excludes from evidence statements obtained by torture. Although 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 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 Constitution as commander in chief of this nation's armed and Congress' recognition of that authority in AUMF, Articles 21 and 36 of Uniform Code of Military Justice, and 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 power to declare war, to define and punish Piracies and Felonies committed on high seas, and Offences against Law of Nations, to make rules for Government and Regulations of land and naval forces, and to make all Laws which shall be necessary and proper for carrying into Execution foregoing The Constitution also authorizes President to convene military commissions. Under Article 2, President, as commander in chief, is authorized to convene military courts and tribunals pursuant to his wartime powers. This authorization is consistent with historical practice. Since formation of our republic, President and other military commanders have convened military commissions; they were convened during War of 1812, Mexican-American War, Civil War, Philippine Insurrection, 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 Supreme Court case addressed President's authority to convene military commissions in Ex parte Quirin. Eight German saboteurs covertly entered United States to blow up factories and bridges, and were captured. The President convened military commissions to try saboteurs on charges of violations of law of war, conspiracy, and violation of Articles of War by aiding enemy, and spying. …