Will Military Commissions Act Gain Legitimacy?

The Senate Armed Services Committee held a hearing today on the proposed amendments to the military commissions responsible for trying the detainees at Guantanamo Bay. Three major themes were evident throughout the hearings: the desirability of trying detainees in Article III federal courts versus trying them in the proposed military commissions and where such trials took place; raising the legal standards under which the military commissions operate to match or exceed those required in international law; and, whether the proposed changes would help regain legitimacy in prosecuting the detainees.

Most of the discussion centered on the debate between trying detainees in federal courts versus military commissions. Several of the Republican Senators argued against trying any detainees in Article III federal courts because, they alleged, that would lead to the recognition of constitutional rights for detainees. But David Kris, Assistant Attorney General for the National Security Division at the Department of Justice testified that regardless of the form of trial used due process rights have already been recognized by the Supreme Court.

The hearing also focused on three major proposed changes to the military commissions: (1) the shift in the burden of proof in admitting hearsay; (2) barring statements coerced through torture or other cruel, inhuman, or degrading treatment; and, (3) defendants’ rights to choose their defense counsel. And, every panelist agreed that the military commissions should hew closely to the Uniform Code of Military Justice requirements, departing only when absolutely necessary as required by law.

All changes to the commissions ultimately address whether, moving forward, the commissions will gain legitimacy. Vice Admiral Bruce E. MacDonald, Judge Advocate General of the Navy, stated that a good test of this would be whether America would be willing to try one of its own soldiers in such a system.