Can U.S. Citizen Be Tried by the Military Commission Under the Constitution and Laws of the United States?
11 attacks, an American citizen who had been arrested in Chicago and accused of terrorism links was deemed to be an “enemy combatant” and transferred to military custody. He was held in wartime detention without trial for years, then transferred back to the civilian justice system before the Supreme Court could resolve his case. In 2011, an American drone strike targeted and killed an American citizen who had been deemed to be an operational terrorist leader whose capture was infeasible, but who had not been charged or convicted in a trial.
citizen by military commission is unconstitutional when civilian courts are still available and operational (in Ex parte Milligan), and that the trial by military commission of a U.S. citizen who is also an unlawful enemy combatant is constitutional (in Ex parte Quirin).
military commissions. The Bush administration appears intent on evading the due process protections of U.S. federal courts by trying civilians for alleged military offenses that are in fact crimes that should be prosecuted in a regular criminal court.
The answer is more complicated than one would think. A citizen may be detained (subject to habeas challenge), but not tried, under the MCA.
International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171.
U.N. Human Rights Committee, General Comment 13, art. 14 (Twenty-first session, 1984),
Human Rights Watch, Letter to Department of Defense General Counsel Haynes, March 14, 2002.