Some Observations on the Future of U.S. Military Commissions

Article excerpt

The Obama Administration confronts many of the same practical and legal complexities that interagency experts debated in the fall of 2001. Military commissions remain a valid, if unwieldy, tool to be used at the discretion of a Commander-in-Chief Refinement oft he commission procedures has consumed thousands of legal hours within the Department of Defense, as well as a significant share of the Supreme Court docket. In practice, the military commissions have not been the charade of justice created by an overpowerful and unaccountable chief executive that critics predicted. In light of the permissive structure of U.S. statutes and the framework of international precedent, there is no requirement for complete consistency between the procedures applicable to military commissions and Article 111 courts. The synergistic efforts of the judicial, legislative, and executive branches makes the current military commissions lawful and without question "established by law" as required by international norms.


The inception and implementation of the Military Commissions in the aftermath of the September 11,2001 attacks generated a storm of legislation and litigation that may be barely abated at the tenth anniversary observances of the attacks. As the President declared a state of national emergency, (1) Americans were aroused into a frenzy of reflexive uncertainty and unified patriotism. In short order, the complacency of peaceful normality gave way to a rising urgency of warlike rhetoric and resolve. The U.N. Security Council unanimously passed Resolution 1368 categorizing the attacks as a "threat to international peace and security," affirming the "inherent right of individual or collective self-defense" expressed in Article 51 of the U.N. Charter, and specifically directing "all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks." (2) For the first time in its storied existence, The North Atlantic Treaty Organization (NATO) invoked the principle of Article 5 of the Washington Treaty, thereby recognizing that the attacks constituted an "armed attack" consistent with the Treaty's provisions that trigger NATO obligations to assist another member so attacked. (3)

On September 20, 2001, President Bush addressed a Joint Session of Congress, aware that the world--and perhaps the terrorist network--was listening. The President declared that "we are a country awakened to danger and called to defend freedom. Our grief has turned to anger, and anger to resolution. Whether we bring our enemies to justice, or bring justice to our enemies, justice will be done." (4) The Congress responded by enacting the Joint Resolution to Authorize the Use of United States Armed Forces Against Those Responsible for the Recent Attacks Launched Against the United States (AUMF). The AUMF authorizes 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...." (5)

Almost simultaneously, the White House authorized a small interagency team of experts to develop the available options for prosecuting al-Qaeda and Taliban fighters who could reasonably be expected to enter into U.S. custody following combat operations. (6) Drawn from the Departments of Justice, State, and Defense, the interagency working group began to prepare an extensive and detailed decision-making memorandum to guide the Executive branch in evaluating the relative merits of the various prosecutorial and legal options. (7) As the days turned into weeks, and the interagency experts worked towards a comprehensive document based on interagency consensus, the national mood demanded decisive progress.

Military operations began the first week of October 2001 with strikes at the heart of the Taliban controlled safe havens from which al-Qaeda planned and launched the attacks on America; (8) the lingering legal debates took on a renewed urgency and import, as the pressure for swift action increased. …