Military Commissions

By Gerry J. Gilmore


WASHINGTON, Oct. 19, 2006 – Military commissions are a proper way to try certain people suspected of committing terrorist acts against America, in part because U.S. law prior to the Sept. 11, 2001, terror attacks didn't even address such a situation, a U.S. State Department legal advisor told reporters here today. "We cannot try the vast majority of individuals (being held) at Guantanamo (Bay, Cuba,) under our criminal laws, because as of Sept. 11, 2001, they had not broken laws that we had on our books that had extraterritorial application," John B. Bellinger III said at a Foreign Press Center news briefing.

U.S. law at the time didn't address the legal status of terror suspects who'd been captured in Afghanistan during Operation Enduring Freedom, Bellinger said.

"Our criminal laws didn't have extraterritorial application into their activities in Afghanistan," Bellinger explained, adding most other nation's laws at that time also lacked such a provision.

Bellinger was explaining the legal landscape related to detainees who could be tried under the Military Commissions Act of 2006 that President Bush signed into law Oct. 17.

The Military Commissions Act "now makes clear what the legal standard is for the treatment and detention of those individuals," Bellinger said. No affiliated program will go forward until Congress has approved it, he said.

"These military commissions are lawful, they are fair, and they are necessary," Bush said on the day he signed the act into law.

The act allows military commissions to try people suspected of complicity in the 9/11 attacks on America, the attack on the USS Cole in Yemen in 2000, and the bombings of the U.S. embassies in Kenya and Tanzania in 1998.

Bush said the act transmits "a clear message to those who kill Americans: We will find you and we will bring you to justice."

Bellinger travels worldwide to explain the purpose and rationale of military commissions to U.S. allies. He recently returned from a trip to Europe, he noted, where he met with European Union officials.

The White House and Congress worked together to change some aspects of the military commissions process that are reflected in the Military Commissions Act, Bellinger said. Plaintiffs must now be present in court during the presentation of evidence by the prosecution, he said.

And accused rights' of appeal, Bellinger added, now can potentially go as high as the U.S. Supreme Court.

"So, there is an appeal mechanism into our independent federal judiciary," he said.

Bellinger also noted that detainees at Guantanamo aren't being denied their rights to habeas corpus, since they don't have the right to habeas corpus.

A writ of habeas corpus is a judicial order that an inmate be brought to court so it can be determined whether that person is imprisoned lawfully and whether he or she should be released from custody.

"No individual in any military conflict in American military history has ever had the right to habeas corpus before," Bellinger pointed out. However, detainees do have an independent court review, he said, of whether or not they're being properly held by U.S. authorities.

Military Commissions are modeled on an "honorable and robust" military justice court system that has well served servicemembers for many years, Bellinger said. Therefore, military commissions aren't "something that's new or made up," Bellinger emphasized. "It's gone on for decades and decades."

Bellinger said the Guantanamo detainees are not prisoners of war as defined by the Geneva Conventions. "The Geneva Conventions say that prisoners of war are only those individuals who belong to a contracting party to the Geneva Conventions," he explained.

"Al Qaeda is not a contracting party to the Geneva Conventions," he noted.