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
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. …