NCPA - National Center for Policy Analysis

Bar Association Panel Says Military Commissions Justified

January 9, 2002

The Sept. 11 attacks were arguably violations of the law of war that would justify military commissions to prosecute cases, concludes a task force appointed by the president of the American Bar Association.

President Bush issued an Executive Order Nov. 13 authorizing the use of the commissions and the Defense Department is developing implementing regulations.

The Task Force says "if conducted under reasonable procedures ... they can deliver justice with due process." It said the alternatives -- U.S. domestic courts, an international tribunal or other countries' domestic courts -- are "not without difficulties."

Specifically, the task force recommends that persons tried by military commission be permitted to seek habeas corpus relief in U.S. courts; either the proceedings be open to the press and public or trial observers with appropriate security clearance; and that death sentences require a unanimous vote.

In addition, it recommends:

  • Commissions should not be used to try persons lawfully present in the United States, persons in the United States accused of crimes unrelated to the Sept. 11 attacks, or persons not accused of violations of the law of war.
  • Procedures should fulfill the President's direction that they afford a "full and fair trial," follow rules for Courts-Martial and conform to Article 14 of the International Covenant on Civil and Political Rights.

Thus defendants would be presumed innocent, receive prompt notice of the charges against them, have counsel of their own choosing, the opportunity to examine and compel witnesses, and the assistance of an interpreter. Defendants could not be compelled to testify against themselves or forced to confess, and their sentences would be reviewable by a higher tribunal.

Source: Press release, "ABA Task Force Says Use of Military Commissions Justified," January 4, 2002, American Bar Association Task Force on Terrorism and the Law.


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