Date of this Version
THE AMERICAN JOURNAL OF INTERNATIONAL LAW 101:56 (2007) pp. 56-73.
Over five years have passed since President George W. Bush issued the much-criticized order making an obscure device, military commissions, the primary tool for the United States to bring accused Qaeda terrorists to justice.1 Some legal scholars suggested in the wake of the issuance of that order that military commissions were the only practicable method available to address many of the problems presented by the trial of accused terrorists in civilian U.S. courts.2 True or not, it is clear that the decision to approach the problem of terrorists primarily in terms of war rather than crime continues to have far-reaching legal consequences. Following the Supreme Court's decision in Hamdan v. Rumsfeld, 3 which found that the military commissions designed by the Bush administration were inconsistent with the requirements of both the Uniform Code of Military Justice (U.C.M.J.) and the law of war as incorporated in that statute, the U.S. Congress attempted to fashion a compliant charter for these commissions through the Military Commissions Act of 2006 (MCA).4
The MCA raises a variety of domestic and international legal issues. This brief essay focuses on the Act's potentially negative impact on U.S. counterterror operations and personnel. Part I provides an overview of some of the ways the MCA contradicts the law of war.5 These include concerns, identified and analyzed below, that the MCA has provided enough leeway for U.S. military commissions to become regarded as "kangaroo courts" and perhaps be allowed to consider evidence obtained through the use of highly coercive interrogation practices. Other contradictions of the law of war derive from the redefinition by Congress of some Geneva Convention offenses and prohibitions to resemble domestic crimes, its addition of new ones and omission of others, its rejection of international sources of law, and its conflation of the rules applicable to international and non-international conflicts.