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

By Newton, Michael A. | Case Western Reserve Journal of International Law, Winter 2009 | Go to article overview
Save to active project

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

Newton, Michael A., Case Western Reserve Journal of International Law

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.

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.
Loading One moment ...
Project items
Cite this article

Cited article

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

Cited article

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


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?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

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

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.

Are you sure you want to delete this highlight?