"If, as may be hoped, we are now to enter upon a new era of law in the world, it becomes more important than ever before for the nations creating that system to observe their greatest traditions of administering justice ... both in their own judging and in their new creation." (1)
In the aftermath of the terrorist attacks of September 11, 2001, Congress authorized the President 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States." (2) Pursuant to this authorization, military operations were soon initiated in Afghanistan against al Qaeda and the Taliban. (3) As most of the country and Congress were focused on repairing damaged landscapes and senses of security at home in addition to the impending conflict in Afghanistan, select members of the Executive Branch were involved in drafting a plan for bringing justice to those involved in terrorism against the United States. (4) This plan was outlined in the President's Military Order of November 13, 2001 [hereinafter "Military Order"]. (5)
As early as January of 2002, individuals captured in Afghanistan and suspected of terrorist activities were brought to the detention facility set up by the Department of Defense at Guantanamo Bay Naval Base, Cuba. (6) Just as quickly, the legality of the detentions and trials by commission were called into question both at home and abroad. Though many controversies and legal challenges have arisen concerning the detention and trial of suspected terrorists at Guantanamo Bay, an issue that has yet to be clearly addressed is what will happen at the end of a successful trial by Military Commission.
President Bush's Military Order precludes judicial review of any type for those individuals falling under the Military Order. (7) However, the Supreme Court held in June of 2004 that statutory habeas review will be available in the federal courts to challenge detention in Guantanamo Bay. (8) Further, even case law cited by the Government as precedent for the use of military tribunals or commissions shows implicit past support for the use of federal habeas actions to challenge the legality of the tribunals and their jurisdiction over the individuals subject to trial in territories within the jurisdiction of the United States. (9) Although this case law purported to limit such review to jurisdictional questions only, the outer limit of federal court jurisdiction over the Guantanamo Bay detainees was left open by the Supreme Court in Rasul. (10)
This note seeks to address the level and type of judicial review that will be available after the completion of a Military Commission trial. For purposes of addressing this issue, the constitutionality of the use of commissions to try detainees will be assumed. It will be argued that, at a minimum, federal habeas jurisdiction must be available to satisfy both national and international law. However, ideally a more thorough form of judicial review should be available, to avoid separation of powers problems and to satisfy domestic and international due process guarantees. Further, from a normative perspective, allowing judicial review in the form of appellate jurisdiction over the procedure and legal findings of the Commissions would be desirable, as it would lend credibility and transparency to procedures that have thus far been wrought with controversy.
II. PROCEDURES FOR MILITARY COMMISSIONS AT GUANTANAMO BAY
The Military Order sets forth procedures for the detention and trial of individuals who are not citizens of the United States and who are determined by the President to be a member of al Qaeda, and have "engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore" or "knowingly harbored [such] individuals." (11) Such individuals are to be detained in accordance with conditions prescribed by the Secretary of Defense, (12) and "when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed." (13)
The Military Order delegates to the Secretary of Defense the responsibility to issue "such orders and regulations" necessary to govern the military commissions, including but not limited to "rules for the conduct of the proceedings of the military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys," providing that at a minimum detainees would receive a "full and fair trial." (14) Review and final decision on any trial would be performed by the President or the Secretary of Defense. (15) Finally, the Military Order provides that military commissions shall have exclusive jurisdiction with regard to offenses by individuals subject to the order, and that such individuals "shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any state thereof, (ii) any court of any foreign nation, or (iii) any international tribunal." (16)
The Secretary of Defense issued regulations setting forth the procedures for commissions established pursuant to the Military Order. (17) These regulations provide for appointment of the members of each Commission, including a Presiding Officer, by the Appointing Authority, a designee of the Secretary of Defense. (18) The Presiding Officer heads the proceedings of the Commission. (19) A record of the trial is to be made by the Commission and authenticated by the Presiding officer. (20) Upon completion of trial, this record is to be transmitted to the Appointing Authority or to a Review Panel if the Secretary of Defense is acting as the Appointing Authority. (21) The Appointing Authority performs an administrative review of the record of trial, and, if satisfied that the proceedings were administratively complete, transmits the record of trial to the Review Panel. (22) The Review Panel then reviews the record of trial and within thirty days either forwards the case to the Secretary of Defense with a recommendation as to disposition or returns the case to the Appointing Authority for further proceedings. (23) The Secretary of Defense then performs a similar review of the record, either returning the case for further proceedings, forwarding it to the President with a recommendation as to disposition, or making the final determination if designated by the President to perform this function. (24)
Trial by the Commission commences when the Appointing Authority refers the charges of an individual who is subject to the Military Order to the Commission. (25) On July 3, 2003, the President determined that six detainees would be eligible for trial by Military Commission. (26) At the date of this note, four detainees have been designated for trial by the Appointing Authority, although fifteen have now been determined eligible by the President. (27) The progress of the trials has been delayed by motions to the Commissions themselves, as well as challenges in the United States Federal Courts. In November of 2004, the decision by the United States District Court of the District of Columbia in the case of Hamdan v. Rumsfeld (28) brought into question further progress by the Commissions. (29) For purposes of this note, which seeks only to address post-trial review of the Military Commissions, the ongoing challenges to the constitutionality of the Military Commissions will be illustrative of considerations that will be important in determining the availability and scope of post-trial judicial review.
III. HISTORICAL USE OF JUDICIAL OVERSIGHT OF MILITARY COMMISSIONS
Historically, the United States has used military commissions while in the battlefield to try spies, saboteurs, and other violations of the laws of war. (30) Additionally, military commissions have been used in occupied territories to try common crimes where local courts may be insufficient, or to fill a legal vacuum where armed conflict disables the civil courts. (31) The use of military commissions as an "exception to the 'preferred' method of civilian trial [was] thus justified by necessity" and often consisted of impromptu proceedings to distribute justice on the battlefield. (32) The use of military commissions by the United States in recent times has been limited, and the key cases dealing with the constitutionality of military commissions arose in regards to their use during the Civil War and World War II.
In Ex parte Milligan, (33) the Supreme Court held that military commissions organized during the civil war, in a state not invaded or engaged in rebellion, in which the federal courts were open and exercising their jurisdiction, had no jurisdiction to try, convict, or sentence a citizen who was neither a resident of a rebellious state, a prisoner of war, nor a person in the military. (34) Thus, while Milligan's holding was limited to the trial of citizens by military commissions, it also provided precedent for judicial inquiry into the legality of the authority and jurisdiction of military commissions, (35) an inquiry that is evident in the following cases dealing with World War II military commissions.
During World War II, the Court had several opportunities to deal with the military commissions. First, in 1942 the Court held constitutional President Roosevelt's military order establishing military commissions to try eight Nazi saboteurs captured on U.S. soil, in Ex parte Quirin. (36) While the 1942 Military Order was directed specifically at the eight Nazi defendants, (37) on the same day, President Roosevelt issued a Proclamation subjecting to the jurisdiction of military tribunals all "subjects, citizens or residents of any nation at war with the United States" …