TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

US military’s Uniform Code of Military Justice (UCMJ). Based on these violations,the Court found that the military commissions as they were constitutedat the time were unlawful.The Military Commissions Act of 2006Reacting to the Hamdan decision, Congress passed the Military CommissionsAct in 2006. This Act explicitly authorized trials by military commission for“unlawful enemy combatants,” including members of the Taliban and al Qaeda.• The Act strengthened procedural protections for defendants in militarycommissions. Specifically, it barred as evidence statements madeunder torture, allowed defendants to be present during commissiontrials and prohibited most kinds of hearsay testimony.• The Act also included a double jeopardy prohibition barring a defendantfrom being tried more than once for the same crime.However, the Act further limited the jurisdiction of the civilian court systemto hear appeals from military commissions. Beyond reaffirming that only theCourt of Appeals for the District of Columbia could hear military commissionappeals, it also absolutely barred civilian courts from reviewing detainees’habeas corpus petitions.In 2008, the Supreme Court in Boumediene v. Bush struck down as unconstitutionalthe Act’s ban on detainees’ habeas corpus rights. 357 The Court ruledthat Guantanamo Bay was similar enough to US territory that detainees heldthere had a constitutional right to petition for habeas corpus. Justice Kennedy’smajority opinion noted, “Within the Constitution’s separation-of-powersstructure, few exercises of judicial power are as legitimate or as necessary asthe responsibility to hear challenges to the authority of the Executive to imprisona person.” 358Military Commissions Under the Obama AdministrationDuring the 2008 presidential campaign, President Obama sharply criticizedthe military commissions system and declared that, if elected, he would “reject130 Trials by Fire: Counterterrorism and the Law

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