3. Terrorist attacks do not normally amount to acts of war. For a terrorist act to amount to an act of war, it must represent part of a broader campaign of violence directed against a state. So the US government has argued that the US has been participating in an armed conflict against Al Qaeda since the early 1990s. This argument has been seen as stretching the application of the law of war too far. In particular, as Al Qaeda is not a ‘state’ under international law, there are conceptual difficulties in ‘fitting their activities into the rubric of the international law of war', a framework which only applies to an armed conflict between two or more states. Congressional Research Service Report for Congress titled ‘Terrorism and the law of war: trying terrorists as war criminals before military commissions’ (Washington, DC 2001) p. 3.Google Scholar

4. Some have argued that such an approach sets a dangerous precedent. A similar approach may be used to combat ‘other societal ills upon which rhetorical “wars” might be declared’. For instance, a war on drugs, ibid.

5. 115 Stat. 224(2001).

6. 66 Fed. Reg. 222. In issuing this order, the president appears to have relied on the authority vested in him as Commander in Chief of the Armed Forces of the United States (i.e., the war power under Art. II of the US Constitution), the AUMF, and two sections of the Uniform Code of Military Justice, title 10, United States Code.

7. The legal basis for the continued detention of these individuals is their status as ‘enemy combatants’. The US Supreme Court has confirmed that pursuant to the laws of war, the US has the right to capture and detain unlawful enemy combatants, Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2640 (2004), citing Ex parte Quirin, 317 US 1, 28 (1942). In support of the government's position that unlawful enemy combatants are not entitled to the protections that prisoners of war would receive, the US president signed an order on 7 February 2002 in which he determined that ‘none of the provisions of [the Geneva Conventions of 1949] apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world’ and that ‘the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war … al-Qaida detainees also do not qualify as prisoners of war’ <http://lawofwar.org/Bush_torture_memo.htm. In making this order, President Bush relied on the opinion of the Department of Justice contained in a memo dated 22 January 2002, and the legal opinion rendered by the Attorney-General contained in a memo dated 1 February 2002. These two memos have been reproduced by Greenberg, K. and Dratel, J., eds., The Torture Papers: The Road to Abu Ghraib (Cambridge, Cambridge University Press 2005) pp. 81 and 126CrossRefGoogle Scholar.

8. See DoD News Release, ‘President determines enemy combatants subject to his military order’, 3 July 2003 <http://www.defenselink.mil/releases/2003/nr20030703-0173.html>.

9. Ibid.

10. Represented by Marine Corps Major Michael D Mori.

11. Represented by Navy Lt. Cmdr. Charles Swift.

12. Represented by Navy Lt. Cdr. Philip Sundel and Army Major Mark Bridges.

13. Represented by Air Force Lt. Col. Sharon Shaffer.

14. Al Qosi, al Bahlul and Hamdan have each been charged with conspiracy. Hicks has been charged with conspiracy, attempted murder by an unprivileged belligerent, and aiding the enemy. The charge sheets of all four detainees can be accessed via the US Department of Defense website <http://www.defenselink.mil/news/Nov2004/charge_sheets.html>.

15. The two British detainees returned to the United Kingdom on 25 January 2005. See, e.g., ‘After Guantanamo,’ BBC News online, 25 01 2005Google Scholar <http://news.bbc.co.uk/l/hi/magazine/4203803.stm>.

16. Military Commission Order No. 2 of 21 June 2003 designated the Deputy Secretary of Defense, Dr Paul D. Wolfowitz, as appointing authority. On 30 December 2003 the Department of Defense announced that John D. Altenburg Jr had been selected to replace Dr Wolfowitz as appointing authority, and that Air Force Brigadier General Thomas L. Hemingway would act as Mr Altenburg's legal advisor. These decisions were confirmed in Military Commission Order No. 4 of 30 January 2004 (which designated Brigadier General Thomas L. Hemingway as deputy appointing authority) and Military Commission Order No. 5 of 15 March 2004 (which revoked Military Commission Order No. 2 and designated Mr Altenburg as appointing authority). Military Commission Order No. 6 of 26 March 2004 later revoked Military Commission Order No. 4.

17. This position has been assigned to Army Colonel Robert L. Swann (succeeding Army Colonel Fred Borch on 20 April 2004). Army Colonel Borch had succeeded Marine Lieutenant Colonel William Lietzau, who was instrumental in the military commission's preparations, as acting chief prosecutor.

18. This position has been assigned to Air Force Colonel William Gunn.

19. Note that under sec. 4C(3), the accused may also select a different judge advocate of the US Armed Forces and/or an eligible US civilian attorney to represent him.

20. ‘Comments’ are also provided for most offences, and sets out information such as the required intent.

21. For a detailed history of military commissions in the US, see generally Congressional Research Service Report for Congress titled ‘Military tribunals: historical patterns and lessons’ (2004).

22. See, e.g,. Ex parte Milligan, 71 US 2 (1866); Ex parte Vallandigham, 68 US 243 (1863).

23. See, e.g., Ex parte Quirin, 317 US 1 (1942); In re Yamashita, 327 US 1 (1946); Madsen v. Kinsella, 343 US 341 (1952).

24. In particular, the International Covenant on Civil and Political Rights of 1966 (ICCPR).

25. Art. 102 Geneva Convention III.

26. See common Art. 3 Geneva Conventions of 1949. See also Art. 146 Geneva Convention IV, in relation to ‘grave breaches’. The Commentary states, in relation to Art. 146, that: ‘[t]he court proceeding should be carried out in a uniform manner whatever the nationality of the accused. Nationals, friends, enemies, all should be subject to the same rules of procedure and judged by the same courts. There is therefore no question of setting up special tribunals to try war criminals of enemy nationality … These guarantees are needed in particular when the accused person is tried by an enemy court … The accused shall have the same right of appeal or petition as those open to members of the armed forces of the Detaining Power’.

27. See, e.g., President Bush's order of 7 February 2002, supra n. 7. Whether an individual is a ‘prisoner of war’ is determined according to the definition of ‘prisoner of war’ in Art. 4 Geneva Convention III. According to Art. 4 Geneva Convention IV, if an individual does not meet this definition, then he or she must be a ‘civilian', which is the only other category recognised by the Geneva Conventions, see Commentary on Art. 4 Geneva Convention TV. It is not clear, based on the definition of a ‘prisoner of war’ in Art. 4 Geneva Convention III, whether the individuals detained in Afghanistan would fulfil any of the possible categories in order to establish this status. Art. 5 Geneva Convention III provides that should any doubt arise as to whether persons shall enjoy the protection of that Convention based on Art. 4, their status should be determined by a ‘competent tribunal’. The status of individuals detained at Guantanamo Bay was not determined by a ‘competent tribunal’ at the time of their capture, nor at the time of their transport to Guantanamo Bay Naval Base. Rather, President Bush made the relevant determination, as indicated in his order of 7 February 2002. It should be noted that the Commentary to Geneva Convention III states that such determinations ‘which might have the gravest consequences should not be left to a single person’.

28. Here, ‘human rights law’ refers to both customary international law, and treaties such as the ICCPR.

29. The US government has argued strongly that human rights law does not apply to detainees held in Guantanamo Bay. For a discussion of this issue, see, e.g., Jinks, D., ‘International human rights law and the war on terrorism’, 31 Denver JIL & Pol. (2003) pp. 106–107Google Scholar. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. (2004) p. 109, where the court found that the ICCPR ‘is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’, which suggests (by analogy) that the ICCPR may apply to the US government's executive conduct in relation to detainees held at Guantanamo Bay.

30. See, e.g., Art. 14(1) ICCPR.

31. For arguments that specialised courts may be contrary to human rights law, see UN Human Rights Committee, General Comment 13, reproduced in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/l/Rev.7 (2004) p. 4; UN Commission on Human Rights, ‘Report of the Working Group on Arbitrary Detention’, UN Doc E/CN.4/1996/40 (1996) p. 26. For cases where the UN Human Rights Committee has expressed concern about specialised courts being used to try charges based on terrorist acts, see ‘Concluding observations of the Human Rights Committee: France’, UN Doc. CCPR/C/79/Add. 80 (1997) p. 23; Kavanagh v. Ireland, Communication No. 818/1998, UN Doc. CCPR/C/71/D/819/1998 (2001) para. 10.3. Similarly, the Inter-American Commission has recommended the elimination of specialised courts which try people with terrorist offences in its ‘Second report on the situation of human rights in Columbia’, OAS Doc. OEA/Ser.L/V/II.84 Doc.39 (1993).

32. UN Commission on Human Rights, report by Emmanuel Decaux, ‘Administration of justice, rule of law and democracy: issue of the administration of justice through military tribunals’, UN Doc. E/CN.4/Sub.2/2004/7 (2004) p. 6.

33. Taylor, T., ‘An outline of the research and publication possibilities of the war crimes trials’, 9 Los Angeles Law Review (1948–1949) pp. 496 at 507Google Scholar. Taylor has explained, with regard to the Nuremberg Tribunal, that military tribunals must be held on the basis that the law applied and enforced is international law of general application which everyone in the world is generally bound to observe. ‘On no other basis can the trials be regarded as judicial proceedings, as distinguished from political inquisitions.’

34. For an argument that this military commission is unconstitutional, see Katyal, N. and Tribe, L., ‘Waging war, deciding guilt: trying the military tribunals’, 111 Yale LJ (2002) p. 1259CrossRefGoogle Scholar.

35. In Duncan v. Kahanamoku, 327 US 304 (1946) the Supreme Court stated: ‘Courts and their procedural safeguards are indispensable to our system of government. They were set up by our founders to protect the liberties they valued. … They were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws. … Legislatures and courts are not merely cherished American institutions; they are indispensable to our government.’ And in Reid v. Covert, 354 US 1, 38–39 (1957) the Court maintained that the ‘blending’ or legislative, executive and judicial powers in one branch of government ran counter to the constitutional principle of separation of governmental powers.

36. For this argument, see Katyal and Tribe, supra n. 34

37. L. Lasry, infra n. 44, p. 48

38. Ratner, M. and Ray, E., Guantanamo: What the World Should Know (White River Junction, VT, Chelsea Green Publishing 2004) p. 73Google Scholar.

39. Recall the fact that it was a range of executive orders signed by President Bush and Secretary of Defense Donald Rumsfeld which purported to create the military commission.

40. Prior to and during the trial, the commission's presiding officer is required to ‘certify all interlocutory questions, the disposition of which would affect a termination of proceedings with respect to a charge, for decision by the appointing authority’, MCO No. 1, sec. 4(A)(5)(d).

41. MCO No. 1, sec. 6(H).

42. In other words, military officers, who are likely to have had some involvement in the planning, preparation or conduct of the ‘war on terror’, are required to sit in judgement against individuals captured in Afghanistan, whom their Commander in Chief (i.e., President Bush) has determined are either members of Al Qaeda, have harbored such members, or have been involved in international terrorism, in order to decide whether they are liable to punishment as war criminals.

43. Panel members are subject to removal by the appointing authority, based on ‘good cause’.

44. As reported by L. Lasry Q.C. (the independent legal observer for the Law Council of Australia who witnessed the voir dire proceedings at the military commission in the case against David Hicks on 25 August 2004), evidence has been received describing the close friendship between the presiding officer, Colonel Brownback, and the appointing authority, Major General Altenburg, since 1992. Each has acted as the primary speaker at the other's retirement functions; Brownback attended the wedding of Altenburg's son; and Brownback contacted Altenburg to congratulate him on his appointment as appointing authority. ‘First report of the Independent Legal Observer for the Law Council of Australia’ (2004) p. 29.

45. See DoD News Transcript, ‘Release of the military commission draft crimes and elements instruction', 28 February 2003 <http://www.defenselink.mil/transcripts/2003/t02282003t0228commission.html>.

46. McCormack, T., ‘Hicks: a case of guilt by association’, in The Age, 12 06 2004Google Scholar <http://www.theage.com.au/articles/2004/06/ll/1086749892848.html?from=storyrhs>.

47. DoD Fact Sheet, ‘Military commission procedures’, 12 August 2003 <http://www.defenselink.mil/news/Aug2003/d20030812factsheet.pdf>.

48. Detainees are restricted to small cells, except for interrogations and three 30 minute exercise periods each week on a small concrete slab. Lights are kept on 24 hours a day. Detainees are shackled while outside their cells. See, e.g., Savage, C., ‘For detainees at Guantanamo Bay, daily benefits — and uncertainty’, in The Miami Herald, 23 11 2004Google Scholar.

49. The ICRC has expressed concern about the effects of the continuing legal uncertainty on the psychological health of the prisoners. By October 2003 some 21 prisoners had made 32 suicide attempts, and a large number were being treated for clinical depression. ‘Red Cross blasts Guantanamo’, BBC News online, 10 10 2003Google Scholar.

50. For example, one British detainee has accused his American captors of subjecting him and other detainees to beatings, forced injections, sleep deprivation, shackling in painful positions, broken bones and sexual humiliation. See Prince, R. and Jones, G., ‘My hell in Camp X-Ray’, in The Mirror, 12 03 2004Google Scholar.

51. See President Bush's Press Conference with Afghan Interim Chairman Karzai, 28 January 2002 <http://usinfo.org/usia/usinfo.state.gov/topical/pol/terror/0201281l.htm>; President Bush's State of Union Address, 29 January 2002 <http://www.whitehouse.gov/news/releases/2002/01/20020129-ll.html>; President Bush's speech on 20 March 2002 <http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html>; ‘Ashcroft discusses war against al Qaeda', CNN Late Edition with Wolf Blitzer, 20 January 2002 <http://archives.cnn.com/TRANSCRIPTS/0201/20/le.00.html>.

52. DoD News Transcript, ‘Secretary Rumsfeld interview with NBC Meet the Press’, 20 January 2002 <http://www.defense.gov/news/Jan2002/>; G.J. Gilmore, ‘Rumsfeld visits, thanks US troops at Camp X-Ray in Cuba’, American Forces Press Service, 27 January 2002 <http://www.defense.gov/news/Jan2002/>.

53. DoD News Transcript, ‘Secretary Rumsfeld interview with The Telegraph’, 26 February 2002 <http://www.defense.gov/news/Feb2002/briefings.html>.

54. See DoD News Release, ‘DOD assigns legal counsel for Guantanamo detainee’, 3 December 2003 <http://www.defenselink.mil/releases/2003/nr20031203-0721.html>.

55. 124 S. Ct. 2686 (2004).

56. DoD Fact Sheet, ‘Combatant Status Review Tribunal’, 7 July 2004 <http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf>.

57. As at 19 April 2005, 232 detainees had been transferred out of Guantanamo Bay Naval Base. See ‘United States releases 18 detainees from Guantanamo Bay, Cuba’, USINFO, 19 April 2005 <http://usinfo.state.gov/dhr/Archive/2005/Apr/20-440093.html>.

58. Note that the legality of the CSRT remains unresolved by US courts.