<<previous  |  index  |  next>>

Improper Use of Military Courts

President Bush’s Military Order of November 13, 2001 authorizes the use of military commissions to try non-U.S. citizens who are or were members of al-Qaeda, who engaged in acts of international terrorism, or who knowingly “harbored” such persons. Military commissions are permitted under international law within the context of an armed conflict in place of civilian courts. But the military order encompasses civilians who had no connection to armed conflict as understood under international humanitarian law and, indeed, who are accused of acts committed far from any actual battlefield. Using military courts to try such persons violates their right to trial by an independent and impartial court.

According to the U.N. Human Rights Committee, the body that monitors compliance with the International Covenant on Civil and Political Rights,⁷the use of military courts to try civilians “could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice.”⁸ Such would seem to be the case with the U.S. military commissions. The Bush administration appears intent on evading the due process protections of U.S. federal courts by trying civilians for alleged military offenses that are in fact crimes that should be prosecuted in a regular criminal court.

Under the military commission rules, an offense prosecutable by the commissions must be one that has taken place “in the context of and was associated with armed conflict.”⁹ The definition of an armed conflict under the commission rules is so broad, however, that virtually any terrorist act anywhere in the world would be within the commission’s jurisdiction. The defendant’s conduct need only be distantly or vaguely related to a traditional armed conflict.¹⁰

This explanation leaves open the possibility that the Bush administration – which has stated it is engaged in a global war against terrorism – might well consider any act anywhere in the world that is suspected of supporting a terrorist group to be “associated with armed conflict.” For instance, a non-U.S. national living in the United States could conceivably be tried by a military commission for the crime of “aiding the enemy.”¹¹ if he sent funds to al-Qaeda, rather than being tried under federal anti-terrorism legislation. The question is not whether such conduct can properly be criminalized, but rather whether such crimes can properly be tried by a military tribunal. Under the military commission rules, jurisdiction is defined to include acts that are normally considered civilian crimes and lack the necessary nexus to an armed conflict to be war crimes. The Pentagon has thus greatly expanded the range of offenses prosecutable by the military commissions. Such a misuse of military courts to try civilians would be an evasion of U.S. obligations to conduct fair trials under international human rights law.