The current military commission system came into place when
President Obama signed the Military Commissions Act of 2009. 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. 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. Furthermore, the government may have been
listening to and recording attorney-client meetings. Defense counsel also encounter problems when
they try to gain access to their clients and prepare them for court. Guantanamo Bay facilities have very
restrictive visiting hours in comparison to federal prisons. 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. 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. 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. If this had taken place in a federal prison,
the guard would be held in contempt for violating a court order.
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. Even though there have been some successful
convictions in the military commission, many of the convictions have been
overturned by federal appellate courts. 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.
 Military Commissions, Human Rights First, http://www.humanrightsfirst.org/our-work/law-and-security/military-commissions/ (last visited Feb. 1, 2014 - no longer available). The
Military Commissions Act was part of a larger bill, the National Defense
Authorization Act. Id.
 Military Commissions History, Office of Military Commissions, http://www.mc.mil/ABOUTUS/MilitaryCommissionsHistory.aspx (last visited Feb. 1, 2014).
 Military Commissions No Place for 9-11
Terrorism Cases, Human Rights First
(Apr. 4, 2011), http://www.humanrightsfirst.org/press-release/military-commissions-no-place-9-11-terrorism-cases [hereinafter Military Commissions].
 Ian Kysel, Guantanamo Dispatch: New
Revelations of Attorney-Client Surveillance, ACLU (June 14, 2013), https://www.aclu.org/blog/national-security/guantanamo-dispatch-new-revelations-attorney-client-surveillance.
 Military Commissions, supra note 3.
Gorski, Guantanamo Dispatch: Why Military
Commissions?, ACLU (Dec. 20, 2013), https://www.aclu.org/blog/national-security/guantanamo-dispatch-why-military-commissions.
Fox, New Delay Hits 9/11 Case at
Guantanamo, The Boston Globe
(Dec. 20, 2013), http://www.bostonglobe.com/news/world/2013/12/20/new-delay-hits-case-guantanamo/3YR0iOBHZhDRK4DF4z6DvN/story.html.
 Military Commissions, supra note 3.
Vlahos, Guantanamo Bay Failed, The American Conservative (Feb. 7,
Posted by Zachary P. Ainsztein (Zach) on Fri. February 14, 2014 8:00 AM