Naval Law Review, 2008
99 Pages Posted: 28 Mar 2008
Date Written: 2008
The Military Commission Act of 2006 (MCA), by anyone's measure, is an extraordinary development. Until this Act, the prosecution of those accused of crimes took one of two paths - civilian prosecutions under a highly developed procedural system, or courts martial under the Uniform Code of Military Justice (UCMJ). From time to time, during armed conflict, persons accused of violating the international laws of war have been prosecuted before military commissions under ad hoc, meager procedures. Unlike the procedures in these ad hoc military commissions, the MCA offers a thorough set of procedures that rival the Uniform Code of Military Justice - a military justice system considered among the fairest of such systems. With two systems designed to produce fair trials - the civilian and the court martial system - why add a third system?
This Article contends that, in weighing justice, we must consider more than the principle that we are so committed to fair trials that we are willing to allow guilty persons to go free so that an innocent person will not be convicted. We must also consider whether principles of justice urge us to hold persons accountable for their actions - for the benefit of society and even the person accused of the illegal acts. This exploration has both a theoretical and practical elements. First, the theoretical exploration involves analyzing principles of justice according to the viewpoints of great philosophers and theologians on the subject - something that the latter third of the Article does before applying those views to the MCA. Second, however, the practical issue - one woven throughout this Article - is that the two other systems (the civilian criminal justice system and the UCMJ) - can result in the abandonment of prosecutions due to the nature of the classified information or sources (e.g. operatives) that would be compromised by bring an accused to justice. Although the UCMJ does a better job than the civilian criminal system, the MCA provides even more protection to classified information and sources. The existence of the MCA may well, therefore, lead to prosecutions of persons accused of violating the laws of war in situations where - without the MCA's having been enacted - the case could be dropped.
The Article does not contend that this accountability principle means that we emasculate the system in which a person is prosecuted. Instead, the Article contends that the combination of the principle of insisting on procedures designed to produce a fair result and the accountability principle can produce a system different from the two traditional systems. The MCA, combined with the Manuals for Military Commissions promulgated pursuant to the MCA, represents as a system that balances the competing goals in a way that is just. In other words, the Act provides a third system that is necessary now in a world in which more prosecutions of persons accused of violating the laws of war is likely to occur.
Keywords: illegal combatants, enemy combatants, procedure, military justice, classified information, national security, classified evidence, justice, public trials, closed trials
JEL Classification: Z00
Suggested Citation: Suggested Citation
Madison, Benjamin V., The Military Commission Act of 2006: An Unnecessary Scheme for Second-Class Justice or an Essential Means to Prosecute Persons Who Otherwise Would Escape Accountability? (2008). Naval Law Review, 2008. Available at SSRN: https://ssrn.com/abstract=1113345