Law & Justice
Military Law Archive
CLOSING THE GUANTANAMO DETENTION CENTER: LEGAL ISSUES. Congressional Research Service, Library of Congress. Michael John Garcia et al. January 15, 2009.
Full Text [PDF format, 40 pages]
As part of the war on terror, after 9/11, many persons captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba for detention and possible prosecution before military tribunals. The report provides an overview of major legal issues likely to arise in the event of executive and/or legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer or release of Guantanamo detainees, either to a foreign country or into the United States, the continued detention of such persons in the United States, and the possible removal of persons brought to the United States.
MILITARY COMMISSIONS ACT OF 2006.
[S. 3930] United States Senate. Signed into law (Pub. L. 109-366) by the President on October 17, 2006.
Full report [pdf format, 38 pages]
[Note: Although unusually long, the entire text of the CRS summary of this Act is provided below, to ensure that synopses of all sections are included. The text of that summary as presented below is available online ]
"Military Commissions Act of 2006 - (Sec. 2) States that the authority under this Act to establish military commissions (commissions) may not be construed to alter or limit the President's authority under the Constitution or laws of the United States to establish commissions for areas declared to be under martial law or in occupied territories should circumstances so require.
(Sec. 3) Amends the Uniform Code of Military Justice (UCMJ) to codify and establish procedures governing the use of commissions to try alien unlawful enemy combatants (combatants) engaged in hostilities against the United States for violations of the law of war and other offenses specifically made triable by commissions under this Act. Defines an "unlawful enemy combatant" as a person who has: (1) engaged in or supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant; or (2) been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or other tribunal established under the authority of the President or the Secretary of Defense (Secretary). Defines a "lawful enemy combatant" as a person who is a member of: (1) the regular forces of a State party engaged in hostilities against the United States; (2) a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or (3) a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.
Authorizes the President to establish such commissions. Prohibits commission findings, holdings, and other precedents from being introduced or considered in any proceeding of a court-martial convened under the UCMJ. Prohibits a combatant subject to trial by commission from invoking the Geneva Conventions as a source of rights. Allows commissions to impose upon any person found guilty any punishment not forbidden under the UCMJ, including the death penalty. Requires an annual report from the Secretary to the congressional defense committees on any trials conducted.
Makes eligible to serve on a commission any commissioned officer of the Armed Forces on active duty. Requires to be detailed to each commission a military judge, trial and military defense counsel, and reporters and interpreters. Requires at least five members in each commission.
Outlines commission pre-trial procedures, including charges and specifications. Prohibits a person from being required to testify against himself (compulsory self-incrimination) at a commission proceeding. Prohibits (with a limited exception) a statement obtained by the use of torture from being admissible against the accused.
Prescribes commission trial procedures, including: (1) rules of evidence; (2) duties of trial and defense counsel; (3) pleas of the accused; (4) opportunity to obtain witnesses and other evidence; (5) the defense of lack of mental responsibility; and (6) the record of trial. Requires: (1) a two-thirds commission member vote for conviction; (2) a three-fourths member vote for a sentence of life imprisonment or confinement of more than ten years; and (3) a unanimous vote by at least 12 members in a case in which the death penalty is sought. Prohibits any sentence from including cruel or unusual punishments such as flogging, branding, or marking or tattooing of the body.
Prescribes commission post-trial procedures, including: (1) review by the convening authority; (2) appeal by the United States; (3) rehearings; (4) reviews by the Court of Military Commission Review, the U.S. Court of Appeals for the District of Columbia, and the U.S. Supreme Court; and (5) the execution of sentences.
Makes the following offenses triable by commissions: (1) murder of protected persons; (2) attacking civilians; (3) attacking civilian objects; (4) attacking protected property; (5) pillaging; (6) denying quarter; (7) taking hostages; (8) employing poison or similar weapons; (9) using protected persons as a shield; (10) using protected property as a shield; (11) torture; (12) cruel or inhuman treatment; (13) intentionally causing serious bodily injury; (14) mutilating or maiming; (15) murder in violation of the law of war; (16) destruction of property in violation of the law of war; (17) using treachery or perfidy; (18) improperly using a flag of truce; (19) improperly using a distinctive emblem; (20) intentionally mistreating a dead body; (21) rape; (22) sexual assault or abuse; (23) hijacking or hazarding a vessel or aircraft; (24) terrorism; (25) providing material support for terrorism; (26) wrongfully aiding the enemy; (27) spying; (28) conspiracy; (29) perjury and obstruction of justice; and (30) contempt.
Requires a report from the Secretary to the defense committees setting forth commission procedures prescribed under this Act.
(Sec. 4) Makes inapplicable to commissions UCMJ provisions concerning: (1) contempt; (2) speedy trial; (3) self-incrimination warnings; and (4) pretrial investigations.
(Sec. 5) Prohibits a person from invoking the Geneva Conventions in any habeas corpus or other civil action to which the United States, a current or former officer, employee, or member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its states or territories.
(Sec. 6) Authorizes the President to interpret the meaning and application of the Geneva Conventions and to promulgate standards and regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions. Directs the President to issue such interpretations through Executive Orders.
Amends the federal criminal code to include the following as violations of the War Crimes Act: (1) torture; (2) cruel or inhuman treatment; (3) performing biological experiments; (4) murder; (5) mutilation or maiming; (6) intentionally causing serious bodily injury; (7) rape; (8) sexual assault or abuse; and (9) taking hostages. Prohibits any person in the custody or control of the United States, regardless of nationality or physical location, from being subject to cruel, inhuman, or degrading treatment or punishment.
(Sec. 7) Amends federal criminal justice provisions to deny any court or judge jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of, or to hear or consider any other action against the United States or its agents relating to any aspect of the detention, treatment, or trial of, an alien detained outside the United States who is or was detained by the United States and has been determined to have been properly detained as an enemy combatant or is awaiting such determination. Makes the provisions of this section effective upon enactment, and applicable to all cases, without exception, pending on or after enactment which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.
(Sec. 8) Amends provisions of the Detainee Treatment Act of 2005 relating to the protection of U.S. government personnel engaged in authorized interrogations to: (1) require (currently authorizes) the U.S. government to provide counsel and pay the legal fees of any such personnel with respect to any civil action or criminal prosecution arising out of an authorized interrogation; and (2) make such provisions effective with respect to actions occurring between September 11, 2001, and December 30, 2005.
(Sec. 9) Amends the Detainee Treatment Act of 2005 to make reviews of all judgments of commissions (currently, only judgments involving a capital case or a case in which the alien was sentenced to imprisonment of ten years or more) a matter of right.
(Sec. 10) Includes all aliens detained by the United States (currently, only those detained by the Department of Defense at Guantanamo Bay, Cuba) under the authority for the review by the U.S. Court of Appeals for the District of Columbia of a decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant."
LAW VS. WAR: COMPETING APPROACHES TO FIGHTING TERRORISM.
Shawn Boyne, Michael German, and Paul R. Pillar; Introduction by Dallas D. Owens United States Army War College, Strategic Studies Institute (SSI). July 2005.
Download the document [pdf format, 29 pages]
In three papers, the authors address one of the fundamental assumptions underlying the conduct of the War on Terrorism, the nature of the enemy and whether perpetrators of terrorist activities are criminals or soldiers (combatants). Although the United States recognizes that terrorist acts are certainly illegal, it has, in many ways, chosen to treat perpetrators as combatants. By contrast, much of the world (including many traditional U.S. allies) has opted for a purely legalistic approach. The papers were presented at a February 2005 conference -- "Beyond the U.S. War on Terrorism: Comparing Domestic Legal Remedies to an International Dilemma" - sponsored by the University of Virginia School of Law, in cooperation with the Strategic Studies Institute (SSI).
In his "Foreword" essay, the SSI director writes that these authors exemplify the important dialogue taking place in their respective communities: federal government, law enforcement, and academia. "Their insights into how our respective cultures and histories influence our definitions, assumptions, and subsequent policy decisions can help us respect and learn from competing strategies. They correctly surmise that our current international struggle is too important for us to ignore assumptions underlying our own and competing ideas." He notes that SSI has offered these thought-provoking readings as a contribution to the national security debate about fighting the War on Terrorism.
AA05278
Hoffman, Michael H. RESCUING THE LAW OF WAR: A WAY FORWARD IN AN ERA OF GLOBAL TERRORISM (Parameters, Vol. 35, No. 2, Summer 2005, pp. 18-35)
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Hoffman, an attorney and retired lieutenant colonel in the Army Reserve, believes that uncertainly about the application of the law of war to terrorists is creating a situation in which "terrorists are gaining an astonishing legal edge over US and other armed forces deployed against them" because the US judiciary is "bestowing legal status and privileges on members of terrorist organizations that have no precedent in the 3,500-year recorded history of warfare." He refutes the notion that all armed conflict is regulated by the Geneva Conventions because they cover only international armed conflict or conflict between nations, noting that no treaty covers situations where "privately organized armed forces cross international borders, stalk international sea lanes, or strike at international aviation for their own ideological or political purposes." According to Hoffman, the term "unlawful combatant" refers only to spies, saboteurs, and guerrilla fighters who are operating during wartime and historical precedence precludes civilian court jurisdiction in such cases. History can, however, provide the basis for adapting the customary rules of war to protect society from terrorists and to protect terrorist prisoners from criminal abuse. He believes that the executive branch of government with Congressional oversight is best equipped to devise rules for this challenge.
OPERATIONAL LAW HANDBOOK 2005.
Derek I. Grimes Editor. United States Army, Judge Advocate General's Legal Center and School. November 2005.
Download the document [pdf format, 610 pages]
The 2005 Operational Law Handbook published by the U.S. Army Judge Advocate General [JAG] Corps provides a comprehensive map of the terrain of military law, from the legal basis for the use of force to domestic operations to the laws governing intelligence and special operations. It provides references and describes tactics and techniques for the practice of operational law. Operational law may be broadly defined as domestic and international law associated with the planning and execution of military operations in peacetime or hostilities. It includes, but is not limited to, Law of War, law related to security assistance, training, mobilization, pre-deployment preparation, deployment, overseas procurement, the conduct of military combat operations, anti- and counter-terrorist activities, status of forces agreements, operations against hostile forces, and civil affairs operations. The Operational Law Handbook is not a substitute for official references. Like operational law itself, the Handbook is a focused collection of diverse legal and practical information.