St. Mary's Law Journal


Congress responded to the terrorist attack of September 11, 2001 by passing the Authorization for the Use of Military Force (AUMF). In the following years Congress augmented that authority with the Military Commissions Act of 2006 (MCA of 2006) and the Military Commissions Act of 2009 (MCA of 2009). In passing these acts, Congress responded to the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President Bush’s attempt to establish military commissions required Congressional authorization. When drafting both MCAs, Congress recognized numerous evidentiary and trial procedures from federal civilian court were inappropriate for trying unlawful combatants. By these Acts, Congress provided a forum which could bring enemy combatants to justice. Despite this forum, President Obama reversed the policy when he announced the Department of Justice would prosecute an enemy combatant in federal civilian court. This reversal effectively recast the war on terror as a criminal matter. The Supreme Court recognized in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld that detention and trial of enemy combatants are fundamental incidents of war encompassed in the AUMF. Legislators who drafted the AUMF concluded the belligerents in this new war should be tried for violations of the laws of war by military commissions. Congress set forth detailed rules for these trials which fully comply with traditional American notions of due process. While the traditions of justice demand fair trial, often seized evidence cannot meet all the evidentiary requirements imposed in civil trials. This includes Congress permitting reliable hearsay, not requiring the overly formal chain of custody requirements, permitting reliable but potentially damaging statements made by enemy soldiers, and limiting the jury pool to qualified officers. The trials of enemy combatants should proceed in the forum which Congress created.


St. Mary's University School of Law