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Abstract:
Although both constitutional and statutory authority is invoked by the conduct of military commission trials, these tribunals are fundamentally common law institutions. Proper understanding of historical precedent is essential to the validity of any common law trial, and in the case of military commissions is also key to interpreting applicable constitutional and statutory mandates. Despite this, current historical knowledge about the commissions is both limited in scope and plagued with common misconceptions; even government participants routinely cite a trial that never happened as a precedent. The original Anglo-American understanding was that only the legislature could establish the personal jurisdiction of military trials. The military commission, the common law counterpart to the statutory court-martial, was not created until 1847, and was based closely on the procedural mandates and due process protections accorded by courts-martial. This commonality was maintained through thousands of cases in the Civil War and Philippine Insurrection, and the senior judge advocate in the Philippines actually drafted the modern statutory language.

Departures from court-martial practice developed during World War II, but do not necessarily constitute valid grounds for continuing to do so today, particularly in light of the significant developments in both international and U.S. military law since that era. The constitutional authority invoked by U.S. trials for law of war violations is committed to Congress, so modern claims of significant executive authority in this field are misplaced, and courts should continue to hear and resolve challenges to commission jurisdiction and procedure.

Military commission, law of war, terrorism, war crimes

Abstract:
Treating the 9/11 attacks as acts of war offered legal advantages that the Administration quickly seized upon, including authority to try suspected terrorists by military commissions. But resort to the law of war also logically invokes its constraints, something ignored by those who developed the initial commission rules. The Supreme Court's Hamdan decision addressed this flaw, holding that at a minimum the rather ambiguous language of Common Article 3 (CA3) of the 1949 Conventions applied to the commissions and that the tribunals failed to meet requisite standard of both the Uniform Code of Military Justice and CA3. Although the subsequent Military Commissions Act of 2006 (MCA) made some much needed improvements to the tribunal's rules, Hamdan is unlikely to be the judiciary's last word on the subject since it contains only a cursory international law analysis and fails to decide whether more specific mandates than CA3 might also apply.

This article endeavors to fill Hamdan's analytical gaps. It first seeks to craft a legally sound definition of the nature and scope of the war on terror, suggesting a more accurate formulation would be the War against al Qaeda and the Taliban, (WAQT). It then assesses three general legal regimes that might provide governing standards applicable to military commission procedures:

(1) law of war treaties ratified by the U.S.;
(2) International Human Rights law; and,
(3) customary international law.

After considering both the impact on the current military commissions and the arguments for and against application of each of these standards, the paper concludes that Article 75 of Additional Geneva Protocol I of 1977, establishing baseline protections for persons not benefiting from more specific treaty provisions, should be the governing international standard. Although not ratified by the United States, this article should apply to the WAQT as being declaratory of customary international law. While the argument for application of CA3 is shown to be weaker than Hamdan portrays it, there would be nothing inconsistent with Hamdan in applying Article 75 as an adjunct to interpreting CA3 as advocated by the plurality opinion. What would be legally inconsistent would be allowing acts justified by the customary law of war to be conducted entirely free of the constraints that body of law imposes.

military commission, law of war, terrorism, war crimes, Geneva Conventions, war on terror

Abstract:
Military planning for the 2003 invasion of Iraq focused on the quick removal of Saddam Hussein using a modest ground force. Little attention seems to have been given to such politico-strategic concerns as post-conflict stability and there is no evidence to indicate that law of war provisions governing belligerent occupation received any consideration. This oversight seems incongruous given the key U.S. role in developing these norms, substantial subsequent experience with their implementation, and the fact that Coalition Provisional Authority (CPA) attorneys in Iraq took them to heart even while U.S. leadership at home avoided mentioning them. Occupation law has practical roots in Napoleon's disastrous experiences in the Peninsula Campaign as well as the U.S. Army's successful operations in Mexico in 1847-48. Americans Henry W. Halleck and Professor Francis Lieber captured lessons from these experiences, and the latter's "Code," prepared during the Civil War, provided the basis for subsequent international codification. Had modern U.S. policy-makers recognized the practical foundation of occupation law and given its requirements due weight in the invasion planning process, it is quite likely that subsequent events in Iraq would have turned out more favorably and the overall costs of the conflict would have been substantially lower.

Belligerent Occupation, Iraq, Law of War

Abstract:
President Bush's November 2001 military order authorizing suspected terrorists' trial by military commissions provoked immediate controversy that has continued to the present day. The Administration has failed to provide a compelling rationale for commission use while fueling the dispute by adopting judicial shortcuts unjustified by either historic practice or accepted legal principles. Supplemental governing directives have proven a mixed lot. Some provided enhanced fairness while others authorized greater departure from accepted due process standards. Virtually all seemed based on policy decisions rather than any higher law. Despite this plethora of regulations, proceedings to date seem largely ad-libbed. Eligibility for trial, the right to choice of counsel, and other benefits accorded the accused depend on nationality, mocking the concept of equal protection. The accused have been seriously disadvantaged in terms of resources, availability of witnesses, and access to evidence, while most of the charges levied are problematic as violations of the law of war. Rules implementing the Military Commissions Act of 2006, itself a reaction to the Supreme Court's Hamdan v. Rumsfeld decision, are a considerable improvement over the tribunals' initial conceptualization. But remaining critical defects, including the likelihood of convictions based on coerced testimony, will preclude trials from meriting approbation as "full and fair." Any convictions will thus be irreparably tainted, and many of the same problems would now follow a shift to either courts-martial or proposed national security courts. If the goal is to incapacitate identified enemies from carrying out further violence against U.S. interests, then a straightforward preventive detention regime fully compliant with the customary law of war would be a much sounder approach. For those defendants it is desired to stigmatize with a criminal conviction, justifying actual penal incarceration or even potentially execution, trials in regular federal courts are the best option.

military commissions, Guantanamo, war on terror

Abstract:
President Bush's military commission order, based upon FDR's guidance for the 1942 trial of Nazi saboteurs, authorized procedures departing substantially from court-martial practice. This paper demonstrates the military commission, whose actual origin is traced to the Mexican War in 1847, differed from the statutory court-martial primarily in jurisdiction, not procedure. It argues that Article 36 of the Uniform Code of Military Justice should be read, particularly in light of developments in contemporary international law and the Charming Betsy canon, to require continued commonality between the two tribunals. This argument was substantially adopted by the district court in Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 166 n12, 169 n15, 170 n16 (D.D.C. 2004).

military commission, UCMJ, international law

Abstract:
[Note: An updated version of this paper is posted separately under the title “Playing by the Rules: Combating al Qaeda Within the Law of War.” This version will remain online as a courtesy to those referred here by citations in other works.]

Although the so-called "War on Terror" is in its seventh year, key legal issues such as the precise identification of the adversary, permissible geographic scope of the conflict, and proper classification and treatment of detainees remain largely unresolved. Military victory is no longer possible, but good faith application of authority from the law of war can complement criminal law in combating the threat while meriting international public support through restoration of the rule of law. Even if the Geneva Conventions do not apply to this conflict as treaty law, customary international law, including many Geneva rules, would, providing potential solutions to some of the difficulties in countering the terrorist threat. If the conflict is validly limited to the scope authorized by Congress, the military (but not the CIA) can legally target members of al Qaeda and hold them preventively without any requirement for criminal trials. But detention conditions must meet international standards which are currently being violated. Good faith adherence to law of war rules also better protects civil liberties than proposed solutions such as national security courts offering less due process than regular federal trials. Such measures start down a slippery slope of compromising legal standards on the basis of expediency. Following the law of war can facilitate the Obama Administration achieving its stated goal of closing Guantánamo without compromising national security.

Abstract:
Although the so-called "war on terror" has entered its seventh year, key legal issues governing the use of force and military detention remain largely unresolved. These questions survive the Bush administration as the United States continues to launch aerial strikes against al Qaeda and President Obama has not foreclosed use of military detention or trials even after Guantanamo is closed. Military victory is not possible, but good faith application of authority from the law of war can effectively complement traditional criminal law in combating the threat. Even if the Geneva Conventions do not formally apply to this conflict, there is a large body of customary international law, including many Geneva rules, that should. If the war is limited to those adversaries authorized by Congress, and the opposition is validly classified under the law of war, the military (but not the CIA) can legally target members of al Qaeda and detain them without the requirement for criminal trial. But the conditions of that detention and any trials must meet international standards, which they currently do not. Good faith application of law of war rules also offers better protections for civil liberties than currently proposed solutions such as national security courts offering less due process than regular federal trials. Such measures start down a slippery slope of compromising legal standards on the basis of expediency that can be avoided through the faithful application of existing international law.

Abstract:
Although the so-called "war on terror" has entered its seventh year, key legal issues governing the use of force and military detention remain largely unresolved. These questions survive the Bush administration as the United States continues to launch aerial strikes against al Qaeda and President Obama has not foreclosed use of military detention or trials even after Guantanamo is closed. Military victory is not possible, but good faith application of authority from the law of war can effectively complement traditional criminal law in combating the threat. Even if the Geneva Conventions do not formally apply to this conflict, there is a large body of customary international law, including many Geneva rules, that should. If the war is limited to those adversaries authorized by Congress, and the opposition is validly classified under the law of war, the military (but not the CIA) can legally target members of al Qaeda and detain them without the requirement for criminal trial. But the conditions of that detention and any trials must meet international standards, which they currently do not. Good faith application of law of war rules also offers better protections for civil liberties than currently proposed solutions such as national security courts offering less due process than regular federal trials. Such measures start down a slippery slope of compromising legal standards on the basis of expediency that can be avoided through the faithful application of existing international law.