On the Crimes Subject to Prosecution in Military Commissions

Posted: 18 Jun 2008

Date Written: March 2007

Abstract

The Military Commissions Act 2006 seems to have a much broader application than the 2003 Military Commission Instruction Number 2, or MCI2. None of the 28 specific crimes listed in ยง 950v(b) of the 2006 Act mentions a nexus with armed conflict. This Act raises a number of questions. In particular three issues are relevant: (i) Congress intended to act under its constitutional power to define offenses against the law of nations. In so far as some of these offences are not violations of the law of nations, they fall outside the field of legislative competence; (ii) the Military Commissions are given excessive discretion in the field of sentencing. There are no terms of imprisonment provided. In many cases the death penalty is allowed. Otherwise the Commissions may impose any sentence they wish. This degree of discretion arguably violates the Eighth Amendment against cruel and unusual punishment ; (iii) there might be a violation of the principle of equal protection: is it constitutional to impose a special regime on suspects simply because they are aliens ?

Suggested Citation

Fletcher, George P., On the Crimes Subject to Prosecution in Military Commissions (March 2007). Journal of International Criminal Justice, Vol. 5, Issue 1, pp. 39-47, 2007. Available at SSRN: https://ssrn.com/abstract=1147507 or http://dx.doi.org/10.1093/jicj/mql101

George P. Fletcher (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-2467 (Phone)

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