Not only did Congress design military commissions with the express intent to advance the law of armed conflict, it provided a forum nearly as protective of the defendant’s rights as a general court-martial. The differences between a military commission trial and a court-martial are now very small. The Military Commissions Act of 2009 has made the protections for unlawful combatants even stronger than they were under the 2006 military commissions. In addition, military officers are better positioned to hear and decide matters pertaining to the law of war than a civilian jury.
The president has suggested we need these trials in federal court because Guantanamo Bay has left a sour taste in the mouths of some of our allies. Even if this is true, selecting a few defendants to be tried elsewhere will not change that perception. But giving civilian trials to these worst-of-the-worst unlawful combatants upsets the important and longstanding Geneva scheme for encouraging compliance with the laws of war.
Ironically, a military commission provides unprivileged belligerents with a significant procedural protection they would not have in federal court. After a conviction by military commission, the officers who entered findings of guilty also impose the sentence. The judge will advise them of the maximum sentence the president has authorized, and that they are at liberty to impose any lesser authorized sentence. By contrast, if the defendants are convicted in a federal trial they will be sentenced using the federal sentencing guidelines, which allow no such discretion.
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