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Analysis: Military Commissions Made Legal

Council on Foreign Relations

October 18, 2006
Prepared by: Lionel Beehner

Military commissions—criminal courts run by the army during wartime—are nothing new in American history. Their origins can be traced back to the Mexican-American War of 1846, and later were employed—and further defined—during both the Civil War and World Wars I and II (LLRX.com). These commissions exist to try detainees during wartime who have broken the laws of war. Shortly after September 11, 2001, President Bush issued a military order to allow the United States to detain, interrogate, and try terrorist suspects. The White House has since maintained that given the dangers posed by terrorists and the sensitivity of the evidence against them, special courts are needed. Hence, President Bush on Tuesday signed into law the Military Commissions Act, which allows military tribunals to try “unlawful enemy combatants” such as captured al-Qaeda operatives like alleged 9/11 mastermind Khalid Sheikh Mohammed (BBC). “We will answer brutal murder with patient justice,” Bush said at the signing. The bill passed both houses of Congress in late September.

But there are murky areas to the law. Not all of the 450 detainees at Guantanamo Bay are high-value terrorist suspects or 9/11 plotters. Many of them, including Osama bin Laden’s Yemeni chauffeur Salim Ahmed Hamdan, are being detained for conspiracy to attack civilians. What was Hamdan’s crime, asks Seton Hall University’s Raymond Brown in this Backgrounder, “Proximity to Bin Laden?” Another detainee is a former al-Jazeera cameraman, fluent in English, who the Guardian reports was promised his freedom if he would agree to become a spy.

The new law has come under heavy criticism from human rights groups. They say it compromises human rights and civil liberties because it strips detainees of their right to habeas corpus (Human Rights Watch) and allows evidence obtained from coercion in addition to hearsay evidence.

Read the rest of this article on the cfr.org website.

Copyright 2006 by the Council on Foreign Relations. This material is republished on GlobalSecurity.org with specific permission from the cfr.org. Reprint and republication queries for this article should be directed to cfr.org.