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"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin

MILITARY COMMISSIONS

The order released by the President on November 13, 2001 gave effect to a system of military commissions. Administration officials have argued the ability to deliver justice via commissions is inherent in presidential power. There is a precedent in 1942, when President Roosevelt established a secret tribunal that ordered the execution of German saboteurs. But the Bush administration's commissions were deemed illegal by the Supreme Court in Hamdan v. Rumsfeld. A new system has now begun operating under the auspices of the Military Commissions Act of 2006 (MCA).

These commissions evaluate captured enemy combatants at Guantanamo Bay. Until the enactment of the MCA, the commissions operated outside of normal congressional scrutiny and avenues of appeal were severely limited. There was clearly scope for subverting the rule of law under the former regime. While Congress' legislative support of the commissions at least lends greater legitimacy to the current system, the question of where exactly presidential legal boundaries lie will require further litigation in a federal court. But the Supreme Court appears reluctant to intrude into the laws of war, and has recently refused to hear a case challenging the commission system established by the MCA.

Timothy Lynch (2006) has argued neither Congress nor the President possess sufficient constitutional authority to bring military commissions into existence. I agree with Lynch. However even assuming I didn't, the MCA is worrying because it specifically prevents "enemy combatants" from relying on the Geneva Conventions. This has raised concern over human rights, in particular, whether a fair trial is possible given the ruling in Hamdi v. Rumsfeld that hearsay evidence is permissible.

Courts may give governments the benefit of the doubt when it comes to factual matters. Justice O'Connor's determination that there must be a degree of deference to the government's "security and intelligence interests", and that prudence should be exercised in this respect, leaves the appropriate balance uncertain.

In effect, the MCA codifies the decision in Hamdi, where it was held that American citizen detainees have a right to counsel and are able to challenge their detention before an impartial judge. Thus, Executive discretion was for a time restricted to "aliens", or non-American citizens.

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