The Authority and Suitability of Military Commissions to Try the September 11th Terrorists

In response to the horrific terrorist attacks of September 11th, the President as Commander-in-Chief issued an order directing the trial of al Qaeda members and other terrorists before military commissions. The order provoked a hornets' nest of reactions from the press, the legal community, and the public. Based on the rhetoric of many pundits and press, it was immediately apparent that little of substance is known about military commissions, which were last used following World War II. This paper traces the historical role and origins of these tribunals, their legal authority, and the advantages they offer over alternative means to try the September 11th terrorists. It concludes that military commissions are more than just appropriate forums for trying these perpetrators; they are, in fact, singularly suited for this purpose. Our nation is at war. Under the law, the al Qaeda terrorists are unlawful combatants who perpetrated monumental war crimes. The use of military commissions to successfully try such war crimes has been consistent throughout the history of war-fighting. There is constitutional authority and jurisdiction for their use, authority that the Supreme Court has upheld. Given the implementing procedures recently announced by the Department of Defense, military commissions will comport with due process and the rule of law, while ensuring the needs of national defense are well protected.