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Published online by Cambridge University Press: 27 February 2017
At the time this essay is being written (in mid-February), much is still not known about the system of military commissions contemplated by the president’s Military Order of November 13, 2001, and about the circumstances in which such commissions will be used. For example, it is not yet clear what offenses will be tried, what rules of evidence will be adopted, whether the defendants’ choice of counsel will be restricted, and whether defendants will be able to pursue ajudicial appeal of their conviction or a collateral challenge to their detention. Presumably, these points will be clarified by further orders or regulations from the executive branch.
1 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57, 833 (Nov. 16, 2001) [hereinafter Military Order].
On March 21, 2002, after the completion of this essay, the Department of Defense issued its Military Commissions Order No. 1 (U.S. Dep’t of Defense, Military Commissions Order No. 1, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism (Mar. 21, 2002), at <http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf>), which (among other things) addresses the rules of evidence and the defendants’ choice of counsel, and provides for review of findings and sentences by a review panel of three military officers. The scope of offenses to be tried is not further clarified, nor is the question of collateral challenge resolved.
2 See, e.g., 10 U.S.C. §§821, 836 (2000); In re Yamashita, 327 U.S. 1 (1946); Ex parte Qunin, 317 U.S. 1 (1942).
3 See the international practice cited in Ex parte Quirin, 317 U.S. 1 (1942). The 1949 Geneva Conventions confirmed that military courts are a lawful means of trying prisoners during armed conflict. See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12,1949, Art. 84, 6 UST 3316, 75 UNTS 135 [hereinafter Geneva Convention No. III].
4 Geneva Convention No. III, supra note 3, Art. 105.
5 Id., Art. 106.
6 See id., Art. 4(A)(2).
7 Id., Art. 4(A)(3).
8 Id., Art. 5. On February 7, the administration announced that it would accept the applicability of the Third Convention to the Taliban because Afghanistan is a party to the Convention, but took the position that Taliban detainees are not entitled to POW status, apparently because of their failure to meet the conditions of Article 4(2). (Presumably, the administration considers Taliban forces not to be “regular armed forces” for the purpose of Article 4(A) (3).) Ari Fleischer, White House Spokesman, Special White House Announcement Re: Application of Geneva Conventions in Afghanistan (Feb. 7, 2002), available in LEXIS, Legis Library, Fednew File.
9 Geneva Convention No. III, supra note 3, Art. 119.
10 United States v. Moussaoui, No. 01-455-A (E.D. Va. filed Dec. 11, 2001).
11 49 U.S.C.§46502 (2000) (aircraft piracy); 18U.S.C.§32 (2000) (destruction of aircraft). For the Convention, Sept. 23, 1971, see 24 UST 564.
12 United States v. Walker Lindh, No. 02-37a (E.D. Va. filed Jan. 15, 2002).
13 Military Order, supra note 1, §4(a).
14 18 U.S.C. §2441 (2000); see, e.g., Regulations on the Law and Customs of War on Land, Art. 25, annex to Hague Convention on the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.
15 SC Res. 1373 (Sept. 28, 2001), 40 ILM 1278 (2001).
