Taking the Bitter with the Sweet: A Law of War Based Analysis of the Military Commission

The decision by President Bush to create a military commission to try captured members of Al Qaeda for alleged crimes committed during the Global War on Terror has been the subject of extensive scholarly analysis and criticism. This article critiques the proposed use of the military commission for the prosecution of violations of the law of war through the lens of military law and the law of war. The article demonstrates how military tribunals serve the dual interests of adjudicating allegations of such offenses and contributing to compliance with the laws of war; and why the legitimacy of such tribunals requires establishing application of the laws of war to the subjects of prosecution and complying with the minimal standards of fairness established by the laws of war for such adjudications. The article concludes that, in theory, use of military commissions to adjudicate alleged violations of the laws of war is a legitimate exercise of presidential authority, and that the military component of the War on Terror does provide a valid jurisdictional predicate for the invocation of this authority derived from the law of war. However, the article also concludes that both the nature of the available charges and the procedural construct related to the currently proposed military commission render the pending process inconsistent with the obligations of imposed by the laws of war.