 TERRORISM
LAW & POLICY |
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President Bush Signs Order Authorizing Military Commissions for Trials of Terrorists
[Duke University News Service, Nov. 14] On Tuesday afternoon, November 13th, President Bush signed a military order authorizing the Secretary of Defense to detain and prosecute, by military commissions, non-US citizens who are or were members of al Qaeda and who have engaged in, aided or abetted, or conspired to commit acts of international terrorism. The President further authorized the Secretary of Defense to issue orders and regulations appointing these commissions and prescribing rules of procedure, including modes of proof, to be used in the commissions. These military commissions would be empowered to render sentences extending to life imprisonment or death upon conviction.
According to Professor Scott Silliman at Duke University School of Law, questions may arise regarding the President’s authority to authorize these military commissions without Congress having to amend existing legislation. “Article 21 of the Uniform Code of Military Justice (10 USC 821) is one of the very few places in our statutory law which specifically mention military commissions, and that provision talks in terms of military commissions having jurisdiction over offenses that violate the law of war”, said Silliman. “It’s an open question whether the terrorist attacks upon the World Trade Center and the Pentagon on September 11th actually constituted violations of the law of war, since I’m not sure we can claim that we were in a period of armed conflict at that particular time. The attacks came from a terrorist group, not a recognized state or government as was the case at Pearl Harbor. Clearly, however, the actions of the terrorists on the 11th were violations of the larger body of international law–the so-called ‘law of nations’–but Article I, Section 8, Clause 10 of the Constitution gives Congress, not the President, the authority to define and punish offenses against international law. The question of the President’s authority in this regard is a matter that needs to be resolved.”
“Even apart from the purely legal issue, I’m not sure that we don’t lose more than we gain in using military commissions to prosecute terrorists in this country”, said Silliman. “There are several options available for prosecuting terrorists: trial in our federal district courts, as was done with those who bombed the World Trade Center in 1993 and the US embassies in Kenya and Tanzania in 1998; trial in another country, since terrorism is a crime allowing for universal jurisdiction; and trial by some type of international tribunal. In my judgment, using military commissions in which individuals can be convicted upon a vote of two-thirds of the members of the commission, under “relaxed” rules of evidence, will not have the same degree of international credibility as the other forums available.”
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