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. Implementing the congressional authorization drawn from the AUMF, and exercising his inherent authority as Commander-in-Chief of the armed forces, (9) President Bush bypassed the interagency experts and issued a hastily drafted Military Order on November 16, 2001. The Military Order [PMO] authorized the Department of Defense to establish military commissions to bring to justice non-citizen members of al-Qaeda and other terrorist organizations that were complicit in the attacks against the U.S. (10) Following the passage of the Military Commissions Act of 2006, (11) the Department of Defense completed and promulgated a wholly new Manual for Military Commissions. (12)
Although only three trials have been completed using the military commissions process, and refinement of the procedures has consumed thousands of legal hours within the Department of Defense, as well as a significant share of the Supreme Court docket, the future remains clouded with enormous uncertainty. After more than eight years of delay and debate, the original goal of expediency and swift judicial processes seems tragically naive in retrospect.
As the Obama Administration confronts many of the same practical and legal complexities that the interagency team began to debate in the fall of 2001, the intervening events warrant some proven conclusions. In particular, military commissions remain a valid, if unwieldy, tool to be used at the discretion of a Commander-in-Chief. This short essay will outline three of the most important conclusions that have been solidified by the post 9/11 practice of modern U.S. military commissions.
DEBUNKING THE MYTH OF MILITARY INADEQUACY
The Presidential Order of November 2001 was based on the conclusion that when the U.S. is actively engaged in an armed conflict, national security interests permit military authorities to enforce the substantive norms governing the conduct of hostilities by developing commission instructions and regulations consistent with the right to a fair trial for those accused of crimes. (13) In accordance with the lex specialis of the laws and customs of warfare, (14) the Order delegated promulgation authority to the Secretary of Defense to develop regulations governing the conduct of the commissions that must, inter alia: provide a full and fair trial; admit probative evidence; protect sensitive and classified information; provide representation by counsel; and convict and sentence only upon the concurrence of at least two-thirds of commission members. (15) The Secretary of Defense dutifully promulgated orders (16) while the Department of Defense General Counsel issued instructions (17) intended to provide potential defendants the range of rights necessary to assure a "full and fair trial" in compliance with the President's specific order. (18)
Critics at the time panned this "fair trial" requirement as a hollow platitude. Some critics recalled the words of one eminent and internationally recognized expert who has used the phrase "Potemkin Justice" to describe enforcement efforts aimed at achieving only a shadow of justice through undermining the core human rights of those who will face charges under the power of overweening executive authority. (19) Avoidance of this is the rationale behind the International Covenant on Civil and Political Rights (ICCPR) requirement that a criminal trial be a "fair and public hearing by a competent, independent and impartial tribunal established by law." (20) This fundamental right to a fair criminal trial that is untainted by executive interference or external manipulation reflects the very essence of human rights norms (21) and the law of occupation (as a subset of the laws and customs of war addressing the relations between military authorities and civilians are prosecuted while in custody). (22) Additional Protocol I to the 1949 Geneva Conventions refined previous articulations of this cornerstone principle by requiring an "impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure...." (23)
As the interagency team theorized about the possibility of commissions in the fall of 2001, the necessity of conducting trials of detained terrorist suspects in conformity with international norms permeated almost every conversation. Legal experts thought carefully about the appropriate balance between the legitimacy of any trial process following the 9/11 crimes, both from the perspective of international audiences and that of the average U.S. citizen. Though operations against al-Qaeda had the imprimatur of Security Council authority under Chapter VII, (24) the hostilities were focused on a non-state actor whose operations were not limited to a specific geographic scope. The military experts in the interagency working group repeatedly expressed the fear that the public mind would commingle the predictably controversial military commission procedures with the advanced state of military justice as practiced under the extant Uniform Code of Military Justice (UCMJ). (25)
The dramatic reformation of the U.S. military justice system in the aftermath of World War II honed it into perhaps the fairest, flexible, and resilient military justice system on earth. Commanders must rely on military lawyers who are able to assist them anywhere in the world, and under any conditions, in applying the UCMJ as the vehicle for the command obligation to maintain good order and discipline. The concern in late 2001 was that hastily implemented military commissions could inflict lasting damage to the hard earned perception of military justice as a dependable and durable judicial process that is resilient enough to travel around the globe alongside U.S. service members while simultaneously ensuring the essential guarantees of fairness and impartiality.