Legal authority of military commissions
The military commissions were established pursuant to the Presidential Order cited as Military Order November 13, 2001 under the George Bush administration. The commission is constitutional and legal and its mandate is anchored on the law. In addition, the commission can be seen as an exercise of the presidential authority in the United States of America in reaction to the terrorist activities visited in the world and specifically American land. It should be appreciated that the military commission draw their legal status and basis from a set of laws. One, it should be appreciated that the progressive American Constitution envisions the use of the military commissions.
One of the arguments put forth by the Supreme Court in their consistent support for the military commissions has always been the provision of the law that enemy combatants who violate the laws of war shall be subject to prosecution. However, since these combatants sit outside the province of citizens of the land, they are not within the constitutional Bill of Rights and should not necessarily be subjected to the federal courts for prosecution. Consequently, the law envisions a situation where the combatants are prosecuted through the military commissions. In addition, the creation of the commissions is anchored on the law and their constitution is subjected to the procedure and governance of the law. This legality discharges on the commission a legitimacy which grants it the legal authority over prosecution of international terrorists.
Lawful and unlawful enemy combatants
Enemy combatants as opposed to friendly combatants have the overall intention of fighting the state or nation often seen as the aggressors. In that breadth, enemy combatants connote the practise of fighting in the opposite side. However, there is a distinction between lawful and unlawful enemy combatants. The lawful combatants are those combatants that fight on behalf of a state or a foreign government establishment. In that context, these combatants have the character that associates them with the foreign government. These characters include an organized and clear command structure, uniforms or distinguishing clothing that identifies them with a given foreign government, possession and use of weaponry openly and without secrecy and lastly, their subscription to the laws of war. On the other hand, the unlawful combatants are illegal in nature, with no definite or recognized command structure, no direct relation to a recognized state or government and a consistent and blatant disregard of the laws of war. In other words, their actions in war are often not justifiable in defense of any state or government.
Civilian prosecution of terrorists
The civilian prosecution of terrorists enables them (the prosecuted) enjoy the rights of civilians in the federal courts. This necessitates the compliance with the rules of evidence and the larger body of the Bill of Rights. This introduces complexities that in the long run could frustrate the case and end to a miscarriage of justice. For instance, the exposure of information in the satisfaction of the rules of evidence which requires the release of evidence to the public and to the defendant poses serious challenges that border on security of sources, robustness of the intelligence system and may give way to the enemy reaching the government’s intelligence or its sources of information. This could pose a security challenge that would be difficult to address.
Prosecution in military commissions over federal courts accrues with a number of advantages. First, it removes the evidence burdens imposed on the prosecution by the federal courts, it allows for secret or closed trail processes and protects the integrity of classified information. Finally, the system appreciates the military nature of terrorism that the federal courts do not have.
Rivkin, D. B., & Casey, L. A. (2006). The Use of Military Commissions in the War on Terror. Boston University International Law Journal , 123-145.