With pretrial hearings for several detainees underway at Guantanamo Bay, and the prospect for full trials before military commissions1 starting either late this year or early in 2005, this little understood option for prosecuting terrorists has become the focus of intense debate within this country and abroad, even becoming an election year issue for the presidential contenders. Many have suggested that the military commission procedures should have grafted in more of the due process protections afforded in courts-martial under the Uniform Code of Military Justice, the criminal justice system created by Congress to govern the conduct of our own service men and women, even though the commissions will be used only for non-resident aliens. Others question whether the proceedings at Guantanamo Bay should comply, even minimally, with constitutional requirements, and most commentators have assailed the lack of any type of judicial review of military commission convictions. But what are these military commissions, and from where do they derive their authority? This brief note is intended only as a primer on the current military commission system for those not familiar with it, highlighting some of the key issues at the center of the debate.
Scott L. Silliman, On Military Commissions, 36 Case Western Reserve Journal of International Law 529-540 (2004)