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Trial By Jury or By Military Tribunal for Accused Terrorist Detainees Facing the Death Penalty? An Examination of Principles that Transcend the U.S. Constitution

Benjamin V. Madison III

Regent University School of Law

University of Florida Journal of Law & Public Policy, Vol. 17, p. 347, December 2006

Following the terrorist attacks on September 11, 2001, the President ordered the creation of military tribunals in which to try persons associated with the attacks. Several persons currently imprisoned at Guantanamo Bay, Cuba, have been charged with capital crimes. As originally set forth by military orders, and now governed by the Military Commission Act of 2006, the procedures contemplate that the Executive Branch will serve as both the prosecutor and the judges of the accused. The procedures require unanimity of the military officers on a tribunal before imposition of the death penalty. Nevertheless, the system lacks a guarantee that a person independent of the prosecuting authority would have to concur in a judgment of death.

Most commentary on the validity of military tribunals, if it goes so far as to analyze the constitutionality and applicability of the Geneva Conventions, stops there. This article goes further. It presumes that all fundamental rights are not codified in the Constitution. In matters of national security, the Framers avoided the erection of constitutional limits - enforceable by courts - that could bind the government's prosecution of military engagements. As in every aspect of the Constitution, however, the Framers created checks to keep each branch of government from becoming imperious. The Constitution thus allocates to Congress the significant task of serving as a check on the Executive Branch in such matters.

Congress should not, of course, impinge on the Executive Branch's prosecution of military affairs any more than necessary. Nevertheless, certain values are so intrinsic that Congress needs to act to vindicate those values even if that makes the Executive Branch's job more difficult. Where, however, does one draw the line? One approach is to examine the principles underlying the Constitution itself. The Framers did not create these principles out of whole cloth. Instead, they relied on and were influenced by not only their own experience but also the philosophies of others they deemed admirable. This Article focuses, in particular, on the principles underlying two sets of constitutional provisions - the right to a jury trial, and the government's war powers. This analysis reveals not only the tension between individual rights and governmental powers, but also offers possible means of reconciling these seemingly irreconcilable interests.

Number of Pages in PDF File: 82

Keywords: Military Tribunals, Military Commissions, Constitution, Jury Trial, War Powers, Just War, Unlawful Combatants, Enemy Combatants, natural law, Bible, Biblical

JEL Classification: K10, K19, K30, K40, K41, K42, K49

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Date posted: November 3, 2007  

Suggested Citation

Madison, Benjamin V., Trial By Jury or By Military Tribunal for Accused Terrorist Detainees Facing the Death Penalty? An Examination of Principles that Transcend the U.S. Constitution. Available at SSRN: http://ssrn.com/abstract=1027032

Contact Information

Benjamin V. Madison III (Contact Author)
Regent University School of Law ( email )
Virginia Beach, VA 23464
United States
757.226.4586 (Phone)
757.226.4329 (Fax)
HOME PAGE: http://www.regent.edu
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