A "Full and Fair" Trial: Can the Executive Ensure It Alone? the Case for Judicial Review of Trials by Military Commissions at Guantanamo Bay

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"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)

I. INTRODUCTION

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. …