Military Commissions: You Can Handle the Truth

For most of us who have neither served in the military nor in a court of law, the current controversy surrounding the utilization of military commission versus a regular Federal trial can be tough to navigate. Those who are for the military commission claim that, dating back to George Washington's time, they have always been the appropriate way to try defendants during wartime. Those on the other side claim they are basically kangaroo courts that manufacture verdicts, and that their use has been infrequent for that reason. The truth about what military commissions are, however, has too often been glossed over on the way to opinion. The following is a layman's account of what military commissions are, and when they are deemed appropriate to use.

The Military Commissions Act, signed into law in 2006, defines the following criteria for its use in prosecution. The defendant must be determined to be an unlawful enemy combatant, and must be from a foreign land. The definition of unlawful enemy combatant is a broad one, claiming that anyone who has either actively supported hostilities against the United States, or has been deemed by a Combatant Status Review Tribunal (under the direction of the President or Secretary of Defense) to be an unlawful enemy combatant.

Unlike in Federal court, intent is not a separate element of the unlawful enemy combatant status. It is assumed to be inherent to the actions, and, as such, is not necessary to prove during the process of a military commission. The conduct assumed to be linked to the intent must be deemed "wrongful" (meaning done without legal justification or other excuse) by a Convening Authority, who can then refer the matter to trial.

The Convening Authority can then establish the commission, which is formed of a Military Judge and five other members (twelve for death penalty cases), all of whom are commissioned officers. As in Federal courts, the defendant is afforded the right to counsel, to confront his accuser, to be represented by counsel free of charge, full disclosure of the case against him, the right to choose not to testify without penalty, and the right to have evidence elicited by coercive or torturous means thrown out. The military commission also assumes innocence, unless guilt is established beyond a reasonable doubt. Appeals are also allowed, including those made to Federal (civilian) courts.

Warrants are not required to have evidence admitted, and the jurors do not have to unanimously agree on the defendant's guilt (a two-thirds majority suffices).

"A Special Coverage: War On Terrorism"

http://news.findlaw.com/legalnews/us/terrorism/documents/tribunals.html

news.findlaw.com

"U.S. Department of Defense: Military Commissions"

http://www.defenselink.mil/news/commissionsacts.html

defenselink.mil