The Military Commissions Act of 2009: Did Congress Get it Right?

By Samantha C. Arrington

29 August 2012 10:47 | Articles, Constitutional

Page: - 1 - 2 - 3 - 4 - 5 - 6 - 7 - 8 - 9 - 10 - 11 - All Pages

The Military Commissions Act of 2009: Did Congress Get it Right?

Image Copyright The National Guard (Flickr), 2012

The Military Commissions Act of 2009: Did Congress Get it Right?

Samantha C. Arrington^Bio

I. INTRODUCTION

“Where were you when the world stopped turning?”¹ You may remember this famous lyric from a song by Alan Jackson written about the September 11, 2001 terrorist attacks. I was sitting in my eighth grade Algebra class, as I watched the horror unfold right before my eyes on national television. At that point in my life, I was not concerned with the justice that would be served on those responsible for this horrendous criminal act on the United States, but now as a law student I recognize the difficulty and obstacles the United States continues to face, some eleven years later, in serving justice on those non-citizens committing these shocking crimes.

It is common knowledge to most United States citizens that United States citizens committing crimes in or against the United States have certain due process rights and protections guaranteed by the Unites States Constitution, but have you ever considered what, if any, rights and protections non-citizens committing crimes in or against the United States have, specifically crimes associated with terrorism? It makes one wonder, do these non-citizens have any due process rights or protections, whether statutorily or constitutionally based, that guarantee them due process before, during and after trial for crimes associated with the war against terror? If so, what types of due process protections are included, and do they extend as far as the due process protections and rights guaranteed to United States citizens?

In 2009, non-citizens were given certain statutorily based due process rights and protections in the realm of military commissions.² Military commissions are military tribunals created for the “detention, treatment and trial of certain non-citizens in the war against terror.”³ Military commissions were formerly created in the United States in 2001 by a Military Order⁴ (M.O.) signed by President George W. Bush⁵ in response to the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon.⁶ The M.O. signed by President Bush authorized military commissions of those non-citizens “suspected of participating in the war against terrorism⁷.”⁸

In 2006, Congress passed the Military Commissions Act of 2006 which permitted military commissions to continue in the wake of the United States Supreme Court striking down the M.O. as inconsistent with the Uniform Code of Military Justice⁹ (UCMJ).¹⁰ In 2009, Congress passed the Military Commissions Act of 2009 as part of the Department of Defense Authorization Act which includes significant revisions to the 2006 version of the Military Commissions Act.¹¹ The purpose of these revisions was to increase the level of due process for those non-citizens being prosecuted under the Act beyond that encompassed in the prior version.¹² These revisions have sparked wide spread debate and controversy about whether non- citizens in military commissions should be afforded any due process rights and protections at all, and, if so, how much due process should be afforded.¹³

The Military Commissions Act of 2009 provides statutorily based due process protections and rights for those non-citizens committing crimes of terror against the United States.¹⁴ These statute based protections include the protection from the admissibility of statements obtained through use of torture or by cruel, inhuman, or degrading treatment of the accused,¹⁵ the admissibility of other statements of the accused,¹⁶ the right against self-incrimination,¹⁷ the right of the accused to present evidence in his defense and to examine and respond to evidence,¹⁸ the right against double jeopardy,¹⁹ the right to counsel,²⁰ and the right to appellate review of the proceedings,²¹ just to name a few.²²

The most significant and perhaps most debated addition to the Military Commissions Act of 2009 was the implementation of the protection against the admissibility of other statements given by the accused, more specifically the voluntariness standard.²³ Under the 2009 version of the Act, in order for other statements of the accused to be admitted into evidence, the statement must not only be reliable and possess sufficient probative value based upon a totality of the circumstances analysis, but it must also be 1) “made incident to lawful conduct during military operations” or 2) be voluntarily given.²⁴ Later on, this article will further discuss in detail the debates surrounding this additive.

Page: – 1 - 2 - 3 - 4 - 5 - 6 - 7 - 8 - 9 - 10 - 11 - All Pages

References ( returns to text)

Samantha Arrington is a third year law student at North Carolina Central University School of Law in Durham, NC where she is the Executive Editor of the Biotechnology & Pharmaceutical Law Review and a member of the NCCU Moot Court Board. Samantha graduated magna cum laude from Methodist University in Fayetteville, NC in May 2010 with a bachelors in Mass Communication and Journalism and a minor in legal studies.
Alan Jackson, Where Were You When the World Stopped Turning (Arista Nashville 2001).
Military Commissions Act of 2009, 10 U.S.C 47A (2012).
President Bush Signs Executive Order Authorizing Military Tribunals, Human Constitutional Rights, http://www.hrcr.org/hottopics/tribunal.html (last accessed April 29, 2012).
Military Order, FreeDisctionary.com, http://www.thefreedictionary.com/Military+order (A command proceeding from a military superior) (last accessed April 29, 2012).
George W. Bush, WhiteHouse.gov, http://www.whitehouse.gov/about/presidents/georgewbush (President George W. Bush was elected as the 43^rd President of the United States of America at the age of 54. He served from 2001-2009. “The airborne terrorist attacks on the World Trade Center, the Pentagon, and the thwarted flight against the White House of Capitol on September 11, 2001, in which nearly 3,000 Americans were killed, transformed George W. Bush into a wartime president. The attacks put on hold many of Bush’s hopes and plans, and Bush’s father, George Bush, the 41^st president, declared that his son “faced the greatest challenge of any president since Abraham Lincoln.” In response, Bush formed a new cabinet-level Department of Homeland Security, sent American forces into Afghanistan to break up the Taliban, a movement under Osama bin Laden that trained financed and exported terrorist teams. The Taliban was successfully disrupted but Bin Laden was not captured and was still on the loose as Bush began his second term. Following the attacks, the president also recast the nation’s intelligence gathering and analysis services, and ordered reform of the military forces to meet the new enemy. . . His most controversial act was the invasion of Iraq on the belief that Iraqi President Saddam Hussein posed a grave threat to the United States. Saddam was captured, but the disruption of Iraq and the killing of American servicemen and friendly Iraqis by insurgents became the challenge of Bush’s government as he began his second term. President Bush pledged during his 2005 State of the Union Address that the United States would help the Iraqi people establish a fully democratic government because the victory of freedom in Iraq would strengthen a new ally in the war on terror, bring hope to a troubled region, and lift a threat from the lives of future generations”) (last accessed April 29, 2012).
Military Order, FreeDisctionary.com, http://www.thefreedictionary.com/Military+order (A command proceeding from a military superior) (last accessed April 29, 2012).
22 U.S.C. § 2656f(d)(2) (2012) (“the term ‘terrorism’ means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents”).
Jennifer K. Elsea, The Military Commissions Act of 2006: Background and Proposed Amendments, Congressional Research Service 1 (2009), http://www.fas.org/sgp/crs/natsec/R40752.pdf.
Military Justice, FREEDICTIONARY.COM, http://legal-dictionary.thefreedictionary.com/Uniform+Code+of+Military+Justice (“The Uniform Code of Military Justice (UCMJ) was enacted by Congress in 1950 (10 U.S.C.A. § 801 et seq.) to establish a standard set of procedural and substantive criminal laws for all the U.S. military services. The UCMJ applies to all members of the military, including those on active duty, students at military academies, prisoners of war, and, in some cases, retired or reserve personnel”) (last accessed April 29, 2012).
Jennifer K. Elsea, The Military Commissions Act of 2006: Background and Proposed Amendments, Congressional Research Service 1 (2009), http://www.fas.org/sgp/crs/natsec/R40752.pdf.
Jennifer K. Elsea, The Military Commissions Act of 2009: Overview and Legal Issues, Congressional Research Service 1 (2010), http://www.fas.org/sgp/crs/natsec/R41163.pdf.
Military Commissions Act of 2009, 10 U.S.C 47A (2012).
Jennifer K. Elsea, The Military Commissions Act of 2009: Overview and Legal Issues, Congressional Research Service 1 (2010), http://www.fas.org/sgp/crs/natsec/R41163.pdf.
Military Commissions Act of 2009, 10 U.S.C 47A (2012).
10 U.S.C §948r (2012).
Id.
Id.
10 U.S.C. § 949a (2012).
10 U.S.C. § 949h (2012).
10 U.S.C. § 949a (2012).
10 U.S.C. § 950c (2012).
Military Commissions Act of 2009, 10 U.S.C. 47A (2012).
10 U.S.C § 948r (2012).
10 U.S.C. § 938r(c) (2012).