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Can U.S. Citizen Be Tried by the Military Commission Under the Constitution and Laws of the United States?

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After the Sept

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.

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Since the MCA authorizes military commissions of “alien unlawful enemy combatant[s]” only, the trial by commission of a U.S. citizen—who is by definition not an alien—would not be authorized. Therefore, as a matter of federal law, the trial of American citizens by military commission at Guantanamo Bay would be illegal. But Congress could always lift the statutory prohibition. As a matter of constitutional law, the situation is more complicated. There actually is no clear constitutional jurisprudence expressly prohibiting the trial of American citizens by military commission. Across the span of a century, the Supreme Court has held both that the trial of a non-combatant U.S. 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).

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According to the U.N. Human Rights Committee, the body that monitors compliance with the International Covenant on Civil and Political Rights, the use of military courts to try civilians “could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice.” Such would seem to be the case with the U.S. 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.

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In the end, legal scholars are debating whether the Military Commission Act, passed by Congress on September 29 and soon to be signed by President Bush, applies to U.S. citizens. The answer is more complicated than one would think. A citizen may be detained (subject to habeas challenge), but not tried, under the MCA.

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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.

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