Military commissions have always been controversial in U.S. history, and no more so than in the past 10 years. Military commissions have traditionally been defined as executive branch courts, created by necessity under a system where ordinary courts are not functioning, such as during a rebellion or military occupation of a foreign country. They are distinct from ordinary criminal trials and the regular military system of justice, the courts-martial, the latter being generally required to “apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts” under the Uniform Code of Military Justice.
Constitutional problems with the Bush (and now Obama) military commissions were accurately explained by Chad DeVeaux of Western State University Law School:
Such commissions, which may most accurately be categorized as “Article II courts,” deviate widely from civilian courts. Ordinarily inviolate procedural protections are disregarded. Juries are denied. The right of appellate review is circumscribed. The universal common-law prohibition against the admission of hearsay, even multiple hearsay, and un-sworn evidence is not honored. Most critically, the structural independence enjoyed by Article III courts and even state jurists is wholly absent. Military commissions are inquisitorial in nature. Military judges and even the commission members themselves fall within the direct chain of command of the President and his proxies and ultimately depend on favorable reviews from these superiors for promotion and career advancement.
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Graphic: Andrew Jackson