Jennifer Trahan


Part I of this Article discusses historical precedent for the use of military commissions. Part II discusses President Bush's Military Order of November 13, 2001 (“Executive Order”) [FN14] as well as various procedural rules issued for the military commission trials. [FN15] Part III discusses the U.S. Supreme Court's decision, Hamdan v. Rumsfeld, which struck down those arrangements. Part IV discusses the recent revisions to trial procedures made in the Military Commissions Act, and also analyzes the extent to which these recent revisions: (a) diverge from trial procedures under the Uniform Code of Military Justice; (b) alter U.S. domestic implementation of the Geneva Conventions; (c) *783 deprive U.S. courts of habeas corpus review regarding Guantanamo detainees, seek to deprive U.S. courts of review over other issues of international law, and attempt to create new immunities regarding certain war crimes; and (d) render military commission trials profoundly overbroad---exceeding all historical precedent---for example, by authorizing trials of individuals obtained far from any field of battle and/or without any link to armed conflict. This Article concludes that the Military Commissions Act is politically and legally unwise, and should be thoroughly revised so that trial procedures adhere to prior courts-martial procedures under the Uniform Code of Military Justice and to the Geneva Conventions. The concluding section argues that in attempting to change how the United States implements the Geneva Conventions, Congress is setting hugely problematic precedent--virtually inviting other countries to unilaterally change how they implement the Geneva Conventions when it behooves them. The denial of habeas corpus review is also profoundly troubling given suggestions that detainees could be held at Guantanamo indefinitely. Finally, the concluding section suggests that there is confusion as to the proper use of military commissions derived from invocations of a global “war on terrorism” or “war on terror”; as to individuals apprehended far from any field of battle and/or not during traditional armed conflict, trials should be held in federal court, pursuant to federal anti-terrorism laws, as were terrorism cases in the United States throughout the 1990s.