Scope of Presidential Power: Military Commissions - America's Domestic War Crimes Court

By Hemingway, Thomas | Proceedings of the Annual Meeting-American Society of International Law, Annual 2006 | Go to article overview

Scope of Presidential Power: Military Commissions - America's Domestic War Crimes Court


Hemingway, Thomas, Proceedings of the Annual Meeting-American Society of International Law


On September 11, 2001, the hijacking of four commercial airliners resulted in the death of over 3,000 innocent civilians. Congress reacted swiftly and, on September 18, issued the "Joint Resolution to Authorize the Use of United States Armed Force Against Those Responsible for the Recent Attacks Launched Against the 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 the terrorist attacks that occurred on September 11, 2001."

On November 13, 2001, President Bush issued a Military Order authorizing the Department of Defense to establish military commissions to bring to justice those non-citizen members or supporters of Al Qaeda that threaten the security of America and the world.

Although the President's Military Order does not spell out the specific, individual procedures guaranteed to accused, the Order guarantees accused the right to a "full and lair" trial and provides for further orders and instructions to implement the Order. Since that time, several military commission orders and instructions have been promulgated, affording accused the presumption of innocence, requirement of proof beyond a reasonable doubt, and a full defense. Most recently, the Department of Defense promulgated Military Commission Instruction Number 10, an order that explicitly excludes from evidence statements obtained by torture. Although the 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 the 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 the Constitution as the commander in chief of this nation's armed forces, and Congress' recognition of that authority in the AUMF, Articles 21 and 36 of the Uniform Code of Military Justice, and the 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 the power to declare war, to "define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations," to "make rules for the Government and Regulations of the land and naval forces," and to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers."

The Constitution also authorizes the President to convene military commissions. Under Article 2, the President, as the commander in chief, is authorized to convene military courts and tribunals pursuant to his wartime powers. This authorization is consistent with historical practice. Since the formation of our republic, the President and other military commanders have convened military commissions; they were convened during the War of 1812, the Mexican-American War, the Civil War, the Philippine Insurrection, the 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 the Supreme Court case addressed the President's authority to convene military commissions in Ex parte Quirin. Eight German saboteurs covertly entered the United States to blow up factories and bridges, and were captured. The President convened military commissions to try the saboteurs on charges of violations of the law of war, conspiracy, and violation of the Articles of War by aiding the enemy, and spying.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Scope of Presidential Power: Military Commissions - America's Domestic War Crimes Court
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.