Editorial Comments |
When a Rose is Not a Rose: Military Commissions v. Courts-Martial
* The author is a Major with the US Army and a Judge Advocate. Thanks are owed to Lieutenant Colonel Mark ‘Max’ Maxwell, Major Sean Watts, Lieutenant Colonel Patricia Ham, and Mrs Mary Maxwell for their assistance in preparing this article. The mistakes in this article, of course, are the author's and the views expressed herein do not reflect the position of the Department of Defense. [ rich.meyer{at}us.army.mil]
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Abstract |
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The Military Commissions Act developed a judicial system based upon that of General Courts-Martial under the Uniform Code of Military Justice. The military commissions will use many of the same personnel and share some procedures with general courts-martial, but certain aspects show them to be very dissimilar. Specifically: the revised evidentiary rules on coerced statements, hearsay and classified evidence; the lack of speedy trial rights; the absence of a formal pre-trial investigation; and the failure to apply case law precedent. These differences will have significant secondary effects on the process that are not favourable to a defendant. As a result of both the primary and secondary effects of the differences, the commissions will provide significantly less due process to unlawful combatants than the general court-martial process will provide to their lawful combatant counterparts.