This State Department memo addresses the question of applying Military Commissions to the Guantanamo detainees. The memo states 1) Military commissions are well-established in U.S. law and practice, as well as international law and practice; 2) the U.S. Supreme Court has upheld the practice in several cases, and the Europeans have used military commissions since at least the 19th century; 3) DOD's recently issued regulations provide procedural safeguards, including appellate review, consistent with U.S. and international law; and 4) the U.S. has improved its system of military justice by increasing procedural safeguards and eliminating command influence.
UNCLASSIFIED
MILITARY COMMISSIONS
Background
(U) On November 13, 2001, President Bush issued a
Military Order authorizing trial of detainees by military
commission and requiring the Secretary of Defense to issue
regulations governing the conduct of such commissions. On
March 21, 2002, after interagency review and consultations
with government and outside experts, the Secretary of
Defense issued the regulations in Military Commission Order
No. 1.
•
(U) Military commissions are well-established in U.S. law
and practice, as well as international law and practice.
•
(U) The U.S. used military commissions in the
Revolutionary War, the Mexican-American War, the American
Civil War, World War II, and the U.S. Supreme Court has
upheld the practice in several cases. Europeans have
used military commissions since at least the 19th
century. They used them extensively following WWI and
WWII, but apparently have not used them in recent years.
•
(U) The Allies tried thousands of individuals in national
military commissions after WWII, and in the International
Military Tribunal at Nuremberg.
•• (U) Since WWII, the U.S. has improved its system of
military justice by increasing procedural safeguards and
eliminating command influence.
•
(U) DOD's recently issued regulations provide procedural
safeguards, including appellate review, consistent with
U.S. and international law.
•
(U) The regulations are consistent with international
humanitarian law standards, including the fair trial
provisions in the 1949 Geneva Conventions and the 1977
Protocols (the US is not a party'to the Protocols, but
accepts Article 75 on fair trials as customary
international law). The Int'l Covenant on Civil and
Political Rights is not part of international
humanitarian law, but the regulations nonetheless satisfy
its basic requirements.
•
(U) The President has not yet designated any individuals
for trial by military commission.
DOS-001316
UNCLASSIFIED