Trying Terrorists: The Case for Expanding the Jurisdiction of Military Commissions to U.S. Citizens

By Kittel, Larkin | Georgetown Journal of International Law, Winter 2013 | Go to article overview

Trying Terrorists: The Case for Expanding the Jurisdiction of Military Commissions to U.S. Citizens


Kittel, Larkin, Georgetown Journal of International Law


TABLE OF CONTENTS

I. INTRODUCTION
II. HISTORY AND DEVELOPMENT OF THE MILITARY COMMISSIONS
    ACT
    A. Comparison of Military Commissions and Article III Courts.
III. JUSTIFICATIONS FOR USING MILITARY COMMISSIONS IN THE
    UNITED STATES
IV. MILITARY TRISUNALS ABROAD: THE ISRAELI EXAMPLE
V. WHY CONGRESS LIMITED THE MILITARY COMMISSIONS ACT TO
   PROSECUTION OF NONCITIZENS
VI. THE MILITARY COMMISSIONS ACT, AS WRITTEN, VIOLATES
    EQUAL PROTECTION
    A. The Military Commissions Act Violates the Equal Protection
       Clause of the Fourteenth Amendment of the U.S.
       Constitution
    B. The Military Commissions Act Violates Equal Protection
       under International Law
VII. POTENTIAL REFORMS
    A. Proposal I: Exclusive Use of Article III Courts Without
       Regard to Citizenship
    B. Proposal II: Exclusive Use of Military Commissions Without
       Regard to Citizenship
    C. Proposal III: Use of Both Military Commissions and Article
       III Courts Without Regard to Citizenship
       1. Proposal III Provides the Government with a
          Choice Between Forums
       2. Proposal III Resolves the Equal Protection
          Problem
       3. Proposal III Provides Congress with an Incentive
          to Improve Military Commission Procedure
VIII. CONCLUSION

I. INTRODUCTION

The debate surrounding the use of military commissions in the United States can be characterized as a tug-of-war between competing needs: the protection of national security and the preservation of the integrity of the American judicial system. It is no secret that military commissions convened pursuant to the Military Commissions Act (1) provide fewer procedural protections to defendants than do Article III courts. (2) For example, there is no right to a speedy trial by military commission. (3) There is no right to a trial by jury; rather, defendants are tried before a military judge and a commission of five to twelve members. (4) In non-death penalty cases, a commission can convict a defendant without a unanimous verdict from the commission members. (5) Only two-thirds of the members must vote guilty to obtain a conviction. (6) Evidence seized abroad may be admissible even if it was obtained improperly. (7) Also, coerced admissions by defendants may be admissible. (8)

Arguably, the less stringent procedural protections offered by military commissions help to address some of the practical difficulties that surround the prosecution of terrorist suspects. For example, a portable military forum may be preferable to a public civilian jury trial where there is a concern that the court may become a target of terrorism. (9) There might also be a special need for secrecy where evidence obtained by foreign intelligence relating to U.S. national security is involved. (10) Additionally, it may be difficult to ensure that evidence was obtained properly amidst the chaos of an ongoing international counter-terrorism operation. (11)

The legitimacy of the rationales for these procedural differences is undermined by one of the less controversial--yet egregiously discriminatory-- aspects of the Military Commissions Act. The Military Commissions Act explicitly reserves the less protective forum it creates for the prosecution of noncitizens. (12) The purpose of this Note is to explore whether there is a legal or logical justification for limiting jurisdiction of military commissions to noncitizens. Ultimately, this Note argues that no such justification exists.

Part II of this Note discusses the background and development of the Military Commissions Act. While there has been some marked improvement in the procedural protections provided by military commissions since they were first authorized in 2006, there are still important, meaningful differences between Article III courts and military commissions. This Note examines these differences and concludes that military commissions are procedurally inferior to Article III courts. …

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 ...
Default project is now your active project.
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

Trying Terrorists: The Case for Expanding the Jurisdiction of Military Commissions to U.S. Citizens
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
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.