Tribunals Essay

This essay has a total of 1383 words and 8 pages.


President Bush's decision to consider establishing military tribunals to prosecute accused
terrorists has set off a major debate on civil liberties in the United States. Supporters
argue that such a measure is a constitutional necessity to address terrorism of an
unprecedented scope. Opponents claim that the tribunals would undermine the rule of law
and deprive defendants of the protection provided for in the American system of justice.
My research and personnel experience on the subject has found the tribunals to be in
direct accordance of what the President of the United States his charged to do. It's the
duty of the President to ensure the safety of all citizens. The tide of war has changed
dramatically within the past twenty years with our enemies becoming more and more
invisible. As the country as changed throughout history, this latest change on how we deal
with our enemies is just another positive step in the right direction. The tribunal rules
do not violate established criminal justice procedures because it does not target crimes
usually prosecuted by the civil criminal justice system.

A military tribunal or military commission is a court-like forum that is created within
the military to try a person accused of crimes. It is authorized by the U.S. Constitution
and the Uniform Code of Military Justice (UCMJ), which is a federal law (Title 10, United
States Code, Chapter 47) passed by Congress. The great majority of the UCMJ is devoted to
the rules concerning the trial of U.S. service personnel by court-martial. Article 21,
UCMJ, however, provides authority to convene other military tribunals. Some individuals in
the military could argue that members are held to a different criminal justice system than
civilians. Most crimes not prosecuted by civil systems like adultery are prosecuted in the
military and can lead to jail time. You will never here complainants because members of
the military understand they are held to a higher standard than their civilian
counterparts. With higher standards there is always a higher cost to pay when you violate

A military tribunal is essentially a court-martial, or a military trial, during a time of
war. The rules of evidence that are in the civilian criminal trials do not apply. The
tribunal ordered by Bush would target non-U.S. citizens suspected by the White House to be
terrorists. The issue most people have with this is the burden of proof. Individuals can
be placed in detention centers for undetermined periods of time without and hard evidence
they have committed a crime. U.S. citizens who fought for the Taliban in Afghanistan would
be exempt from prosecution under President Bush's military tribunal order.

Military tribunals have been held in the U.S. since the Revolutionary War, and the U.S.
Supreme Court ruled unanimously in 1942, that they do not violate the U.S. Constitution.
The Bush administration pledged that if the president convenes a military tribunal, it
would provide a full and fair trial to the accused. The understanding has to be that we
are not dealing with neighborhood criminals. Our criminal justice system is not set up for
mass waves of people from countries that do not claim them wanting to kill us. Prosecuting
them in a civil court and sending them to federal prison does not make sense. We already
have a overwhelming problem with controlling our current prison system. I don't think it
would be wise to place seasoned killers in with bitter prisoners to possibly bread more

In comparing a military tribunal to a court-martial or civilian court there are many
differences which would lead outsiders to believe there are unfair practices in the
system. A federal trial is generally open to the public, while a military tribunal may be
closed. Advocates of the tribunal process say such a setting denies a public forum to the
accused. A tribunal may be held in a different country, in a territory such as Guam or
even on a U.S. naval ship. Greater security can be imposed over what information is
disclosed in a military tribunal as compared with a federal prosecution. Like a
court-martial, a military tribunal will be composed of military members, ostensibly only
officer members and usually no fewer than five, the minimum number that can sit for a
general court-martial. Unlike a federal prosecution, a person tried by a military tribunal
does not have the right to a jury trial. A tribunal's finding of guilt or imposition of
the death penalty does not have to be unanimous. In the case of a five-member panel, four
of the members could vote guilty and impose the death penalty. The last and the most
controversial element of the tribunal systems is a death penalty can be imposed

The president signed the order establishing the tribunals on November 13. Officials have
maintained that the perpetrators of the September 11, attacks and others suspected of
terrorism should be not be tried in U.S. federal courts due to the extraordinary security
situation in the United States. The trials could be held in the United States or in other
countries. Proponents of the tribunals argue they are necessary to protect potential
American jurors from the danger of retribution they might incur for passing judgment on
terrorists, and to shield the government from the necessity of revealing classified

The president's power to convene a military tribunal comes from the authority he wields as
Commander-In-Chief, under Article 2 of the U.S. Constitution. It is distinct from
Congress' power to enact laws that govern the land and naval forces. The Supreme Court has
consistently upheld the use of tribunals. Military jurisdiction over tribunals comes from
the Constitution and international law. International law includes the law of war. The
"Manual for Courts-Martial," which governs trial by court-martial, refers to tribunals as
"commissions. The manual provides that, subject to any applicable rule of international
law or to any regulations prescribed by the president, military commissions shall be
guided by the appropriate principles of law and rules of procedure and evidence prescribed
for courts-martial.

The United Nations only requires that military tribunals be fundamentally fair. That law
further specifies the minimum requirements to be fundamentally fair, all of which are
detailed in President Bush's November 13 order. Bush's order provides that tribunals can
only try non-U.S. citizens involved in international terrorism. The Supreme Court has
ruled that military tribunals cannot try United States citizens if civilian courts are
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