The Military Commissions Act of 2009: Did Congress Get it Right?
Samantha C. ArringtonBio
“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.