2001 November 13

Bush Orders Military Tribunals, Filled With Civil Liberties Problems


President George W. Bush announced on this day that he was ordering Military Tribunals to try captured terrorist suspects being held at Guantanamo Bay. (The first detainees began arriving at Guantanamo on January 11, 2002). In fact, the U.S. has used military commissions a number of times in its history, including under President George Washington, during the Civil War,  the war in the Philippines (1899-1902), and in World War II (see below).

The Military Tribunals were immediately criticized by civil libertarians and human rights activists because of their lack of due process protections. The president exceeded his authority to create the commissions without Congressional authorization, and the order did not allow for review by any civilian court, including the Supreme Court. Trials were to be conducted in secret, with the defendant not permitted to confront and contest evidence presented against him, and non-unanimous verdicts of guilty were permitted. The Supreme Court ruled, in Hamdan v. Rumsfeld on June 29, 2006, that the Bush military tribunals violated both the Uniform Code of Military Justice and Common Article 3 of the 1949 Geneva Conventions. The Hamdan decision forced Congress to pass the 2006 Military Tribunals Act in October 2006. The new law, however, also contained a number of civil liberties violations. Procedures for the military commissions were subsequently revised again under President Barack Obama.

The most important precedent for president-ordered military tribunals involved the one created by President Franklin D. Roosevelt during World War II to try eight German saboteurs, who were captured soon after they landed in the U.S. in the spring of 1942. The Supreme Court upheld the constitutionality of that military commission on July 31, 1942 (and see the written opinion on October 12, 1942), and six of the saboteurs were executed on August 8, 1942. Some historians and legal scholars, however, argue that the entire case involved numerous legal problems and cannot, therefore, be used as a precedent for other cases.

Read the Military Commissions order: http://www.torturingdemocracy.org/documents/20011113.pdf

Learn more: Louis Fisher, Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (2005)

And more: http://www.crf-usa.org/america-responds-to-terrorism/military-tribunals.html

Learn more about the military tribunals: http://www.humanrightsfirst.org/our-work/law-and-security/military-commissions/

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