Symposium Review: Military Commissions - Are They Fair and Are They Really Working?

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The current military commission system came into place when President Obama signed the Military Commissions Act of 2009.[1] The use of military commissions is nothing new in the United States. Military commissions have been used since the Revolutionary War, when General George Washington put into place a Board of General Officers in order to determine whether a former soldier was a spy for Great Britain.[2] There has been great debate over whether the detainees of Guantanamo and other detainees are being afforded due process of the law in these military commissions and whether military commissions have ever been successful in practice.

One of the many criticisms of the use of the military commission system is that the system denies detainees the right to effective counsel. Defense counsel must go through a long, strenuous process of receiving security clearance before they are even allowed to access important information needed to adequately represent their clients.[3] Furthermore, the government may have been listening to and recording attorney-client meetings.[4] Defense counsel also encounter problems when they try to gain access to their clients and prepare them for court.[5] Guantanamo Bay facilities have very restrictive visiting hours in comparison to federal prisons.[6] Defense counsel have also complained that the military commission judges lack the authority to hold prison guards in contempt for interfering with the sleep schedules of their clients.[7] In one instance, a judge had previously ordered a prison guard to stop making “banging sounds and vibrations” at night so the detainee could sleep.[8] The prison guard allegedly did not follow the orders and continued to make the sounds and vibrations, but the judge could not do anything to punish the prison guard because the military commission rules do not give the judge the power to hold the prison guard in contempt.[9] If this had taken place in a federal prison, the guard would be held in contempt for violating a court order.[10]

The military commission at Guantanamo Bay was put in place to deal specifically with the detainees there, but they have not been very effective in doing so. Since the attacks of September 11, 2001, there have been over 400 terrorists successfully prosecuted in federal court, but only a few terrorists have been convicted by military commission.[11] Even though there have been some successful convictions in the military commission, many of the convictions have been overturned by federal appellate courts.[12] Therefore, the military commissions have not been successful in what they were created to do, convict terrorists. Instead, the federal court system has been much more successful in completing this goal.

The military commission at Guantanamo Bay is not providing detainees due process. Instead of receiving a fair trial in a federal court, the detainees are being provided a trial that favors the government. Even though the military commission favors the government, the military commission has not been successful in convicting detainees. It is time to reevaluate the need for the military commissions and whether the trials would be better suited to take place in federal court.

[1] Military Commissions, Human Rights First, (last visited Feb. 1, 2014 - no longer available). The Military Commissions Act was part of a larger bill, the National Defense Authorization Act. Id.

[2] Military Commissions History, Office of Military Commissions, (last visited Feb. 1, 2014).

[3] Military Commissions No Place for 9-11 Terrorism Cases, Human Rights First (Apr. 4, 2011), [hereinafter Military Commissions].

[4] Ian Kysel, Guantanamo Dispatch: New Revelations of Attorney-Client Surveillance, ACLU (June 14, 2013),

[5] Military Commissions, supra note 3.

[6] Ashley Gorski, Guantanamo Dispatch: Why Military Commissions?, ACLU (Dec. 20, 2013),

[7] Ben Fox, New Delay Hits 9/11 Case at Guantanamo, The Boston Globe (Dec. 20, 2013),

[8] Id.

[9] Military Commissions, supra note 3.

[10] Id.

[11] Id.

[12] Kelley Vlahos, Guantanamo Bay Failed, The American Conservative (Feb. 7, 2013),

Posted by Zachary P. Ainsztein (Zach) on Fri. February 14, 2014 8:00 AM
Categories: Symposium, Terrorism

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