The Trial of Unlawful Combatants under the Geneva Conventions & US Military Law
Under Article 5 of the 1949 Geneva Conventions, a detainee suspected of being an unlawful combatant is entitled to the benefits of POW status, until a 'competent tribunal' found them to be an unlawful combatant.
Prior to Bush making a mess of things, that tribunal was a panel of officers who held a hearing, and would make a written finding as to the status of the person in question, operating under the procedures set out in Army Regulation 190-8. That individual would be allowed to present evidence in their own defense, including testifying, calling witnesses, and providing sworn statements. Four outcomes were possible: (1)- lawful combatant- POW; (2) properly detainable civilian (association with the enemy or hostile activities falling short of being an combatant make them a security risk); (3) innocent civilian, to be released; and (4) unlawful combatant. If a detainee is found to be an unlawful combatant, no further action may be taken against them without first having a second proceeding is necessary to determine what violations of the law of war or other crimes they are guilty of, and an appropriate punishment for those acts.
In US practice, the traditional tribunal for trying violations of the law of war by unlawful combatants has been the military commission. From their creation in the Mexican-American War until the beginning of World War II, military commissions followed the same procedures, rules, and afforded the accused the same rights as contemporary general courts-martial under the Army and Navy codes of military law that predated the Uniform Code of Military Justice (adopted 1950.) The difference between the two types of tribunal was jurisdictional, with courts-martial having the authority to try violations of military law, while military commissions were to try violations of the law of war (in addition to its role as the substitute for civil courts under a state of martial law and as the court of military government installed in occupied territory.) Indeed, using the wrong form of tribunal was considered grounds for overturning convictions until revisions of military law in 1915.
It is these changes which provided the legal 'justification' for the bastardized proceedings that followed. There are two articles of the UCMJ in particular, Articles 21 & 36, orginally enacted as Articles 15 & 38 of the 1915 Army Articles of War. AW 15, and by extension Art. 21, UCMJ, gave courts-martial and military commissions concurrent jurisdiction so that a commander could select the type of tribunal that was the most convienient in terms of accessibility, not procedures, without having to worry about a conviction being overturned because of the wrong form of tribunal was used (a common occurence in the Phillipine Insurrection.) AW 38 authorized the President to issue a uniform set of procedural and evidentiary rules for use by courts-martial and military commissions, which were to be similar to those used in criminal trials in US District Courts. This was the statutory authorization for what became the Manual for Courts-Martial, which was intended to enable officers with little legal knowledge or training to arrive at legally correct results without having to track developments in the law (at the time, there were very few military attorneys and the administration of justice at the trial level was in the hands of officers not part of the Judge Advocate General's Corps- often officers from combat or non-legal supporting arms.) When Congress enacted the UCMJ, it was under the impression that this meaning carried over into the new Art. 36, and was not permission to create a bastardized set of procedures for trying unlawful combatants and suspected war criminals.
Where things started to go sideways was in World War II, specifically Ex Parte Quirin. When the military commission was revived in 1942 to try the German agents in that case, FDR's order permitted that military commission to create its own rules of procedure and replace the rules of evidence with a simple standard of admitting stuff that the commission found to be 'reasonably probative.' Although the defendants in that case raised the deviations from court-martial procedure as an issue on appeal, the Supreme Court declined to consider the issue. However, similar deviations from court-martial procedure were an issue in In re Yamashita, where although a majority of the court upheld them, they were also the subject of a blistering dissent from Justice Rutledge, who said that the deviations amounted to an unconstitutional denial of a fair trial.
From the end of World War Two, military commissions were a dormant issue until the aftermath of 9/11, when Bush, relying on the precedents set by Quirin and Yamashita ordered the trial of captured terrorists by military commission without much in the way of procedural or evidentiary rules, and permitting the use of evidence obtained through coercive techniques. The Supreme Court, in a series of split decisions, ruled that detainees had the right to challenge their detentions, and that the military commissions weren't authorized by Congress, violated the UCMJ and the Geneva Convention, and possibly the due process and habeas corpus rights extended by the Constitution. However, Republican Congresses leglislatively approved Bush's acts and attempted to strip the courts of jurisdiction to hear challenges to the tribunals while creating a bastardized version of the UCMJ to govern military commissions, but in Boumediene v. Bush, the Supreme Court found the attempt to strip courts of jurisdiction unconstitutional.
Although the bastardized version of the UCMJ authorized by the Military Commission Act of 2006 is still on the books, it's likely that attempting to use all the departures from standard court-martial practice it authorizes would be struck down by the courts, as similar departures have been previously held to be unconstitutional violations of due process, as well as a violation of Article 3 of the 1949 Geneva Convention, which requires that sentences and executions be the result of judgments from regularly constituted courts providing at least the level of procedural protections considered adequate in the world. (The Bush military commissions, if applied to bonafide POWs, would also violate the requirements of Geneva Convention Articles 84, 99, & 105-06 that states trying POWs to give them the same procedural rights their own servicemembers accused of similar misconduct get.)
Thus, it appears that to be valid under international law and the US Constitution, a military commission would have to just about follow the procedures and provide the accused the protections granted in general courts-martial under the UCMJ. However, with many of the detainees at Guantanamo and other places, I don't know if such a trial would be possible because it's quite likely that the clusterfuck of Bush's policies on the treatment, interrogation, detention, and trial of suspected terrrorists has pretty much tainted most of the evidence to the point where it shouldn't be considered reliable or admissible.
Under Article 5 of the 1949 Geneva Conventions, a detainee suspected of being an unlawful combatant is entitled to the benefits of POW status, until a 'competent tribunal' found them to be an unlawful combatant.
Prior to Bush making a mess of things, that tribunal was a panel of officers who held a hearing, and would make a written finding as to the status of the person in question, operating under the procedures set out in Army Regulation 190-8. That individual would be allowed to present evidence in their own defense, including testifying, calling witnesses, and providing sworn statements. Four outcomes were possible: (1)- lawful combatant- POW; (2) properly detainable civilian (association with the enemy or hostile activities falling short of being an combatant make them a security risk); (3) innocent civilian, to be released; and (4) unlawful combatant. If a detainee is found to be an unlawful combatant, no further action may be taken against them without first having a second proceeding is necessary to determine what violations of the law of war or other crimes they are guilty of, and an appropriate punishment for those acts.
In US practice, the traditional tribunal for trying violations of the law of war by unlawful combatants has been the military commission. From their creation in the Mexican-American War until the beginning of World War II, military commissions followed the same procedures, rules, and afforded the accused the same rights as contemporary general courts-martial under the Army and Navy codes of military law that predated the Uniform Code of Military Justice (adopted 1950.) The difference between the two types of tribunal was jurisdictional, with courts-martial having the authority to try violations of military law, while military commissions were to try violations of the law of war (in addition to its role as the substitute for civil courts under a state of martial law and as the court of military government installed in occupied territory.) Indeed, using the wrong form of tribunal was considered grounds for overturning convictions until revisions of military law in 1915.
It is these changes which provided the legal 'justification' for the bastardized proceedings that followed. There are two articles of the UCMJ in particular, Articles 21 & 36, orginally enacted as Articles 15 & 38 of the 1915 Army Articles of War. AW 15, and by extension Art. 21, UCMJ, gave courts-martial and military commissions concurrent jurisdiction so that a commander could select the type of tribunal that was the most convienient in terms of accessibility, not procedures, without having to worry about a conviction being overturned because of the wrong form of tribunal was used (a common occurence in the Phillipine Insurrection.) AW 38 authorized the President to issue a uniform set of procedural and evidentiary rules for use by courts-martial and military commissions, which were to be similar to those used in criminal trials in US District Courts. This was the statutory authorization for what became the Manual for Courts-Martial, which was intended to enable officers with little legal knowledge or training to arrive at legally correct results without having to track developments in the law (at the time, there were very few military attorneys and the administration of justice at the trial level was in the hands of officers not part of the Judge Advocate General's Corps- often officers from combat or non-legal supporting arms.) When Congress enacted the UCMJ, it was under the impression that this meaning carried over into the new Art. 36, and was not permission to create a bastardized set of procedures for trying unlawful combatants and suspected war criminals.
Where things started to go sideways was in World War II, specifically Ex Parte Quirin. When the military commission was revived in 1942 to try the German agents in that case, FDR's order permitted that military commission to create its own rules of procedure and replace the rules of evidence with a simple standard of admitting stuff that the commission found to be 'reasonably probative.' Although the defendants in that case raised the deviations from court-martial procedure as an issue on appeal, the Supreme Court declined to consider the issue. However, similar deviations from court-martial procedure were an issue in In re Yamashita, where although a majority of the court upheld them, they were also the subject of a blistering dissent from Justice Rutledge, who said that the deviations amounted to an unconstitutional denial of a fair trial.
From the end of World War Two, military commissions were a dormant issue until the aftermath of 9/11, when Bush, relying on the precedents set by Quirin and Yamashita ordered the trial of captured terrorists by military commission without much in the way of procedural or evidentiary rules, and permitting the use of evidence obtained through coercive techniques. The Supreme Court, in a series of split decisions, ruled that detainees had the right to challenge their detentions, and that the military commissions weren't authorized by Congress, violated the UCMJ and the Geneva Convention, and possibly the due process and habeas corpus rights extended by the Constitution. However, Republican Congresses leglislatively approved Bush's acts and attempted to strip the courts of jurisdiction to hear challenges to the tribunals while creating a bastardized version of the UCMJ to govern military commissions, but in Boumediene v. Bush, the Supreme Court found the attempt to strip courts of jurisdiction unconstitutional.
Although the bastardized version of the UCMJ authorized by the Military Commission Act of 2006 is still on the books, it's likely that attempting to use all the departures from standard court-martial practice it authorizes would be struck down by the courts, as similar departures have been previously held to be unconstitutional violations of due process, as well as a violation of Article 3 of the 1949 Geneva Convention, which requires that sentences and executions be the result of judgments from regularly constituted courts providing at least the level of procedural protections considered adequate in the world. (The Bush military commissions, if applied to bonafide POWs, would also violate the requirements of Geneva Convention Articles 84, 99, & 105-06 that states trying POWs to give them the same procedural rights their own servicemembers accused of similar misconduct get.)
Thus, it appears that to be valid under international law and the US Constitution, a military commission would have to just about follow the procedures and provide the accused the protections granted in general courts-martial under the UCMJ. However, with many of the detainees at Guantanamo and other places, I don't know if such a trial would be possible because it's quite likely that the clusterfuck of Bush's policies on the treatment, interrogation, detention, and trial of suspected terrrorists has pretty much tainted most of the evidence to the point where it shouldn't be considered reliable or admissible.
