In the arguments against the military tribunals, a great many are saying that our regular courts "or the Uniform Code of Military Justice" should be used to try the prisoners at Guantanamo Bay. (I refuse to use the euphemism "detainees.") The UCMJ is the set of laws under which our armed forces operate, and other than saying it is more legitimate than the bogus MCA, which I do not dispute, no one has offered any rationale for its use in trying these prisoners.
These prisoners are, supposedly, accused of acts of mass murder against American citizens. How, precisely, does the UCMJ enter the picture here, other than the fact that they were captured by our military personnel? If they were captured on the battlefield, then they are Prisoners of War, the Geneva Conventions apply, and we cannot try them in any court for anything. If they were picked up based on a suspicion of criminal activity, then how does it matter who picked them up? It was an arrest and it should not matter who arrested them. If they are not members of our military, then what factor makes them subject to the laws under which our military operates?
I certainly have no legal training, but why is the UCMJ even in the picture?
Just hypothesizing here:
ReplyDeleteA lot of the prisoners were not technically captured during wartime (the U.S. hasn't had a "legal" war since WWII, since under our Constitution, only the legislature has the power to declare it), so the U.S. might not be able to claim they are prisoners of war these days. The court-martial under UCMJ is a very paternalistic system, but at the same time more friendly to its defendants than a normal court system (it would have to be, since it tries its own soldiers under the same system). A lot more evidence good and bad is let in, but overall the defendant has a lot more protections than in civilian court. Some of this evidence might be the only thing the military prosecutor has to go on (like confessions obtained through interrogation).
At the same time, the UCMJ has a broader range of offenses listed than many local laws or international conventions, including some "umbrella" provisions that can make basically anything an offense. This allows them to keep these guys in jail and prosecute them even if they have very little evidence to go on.
Basically, the military is trying to appease the masses and operate under that good old American presumption of innocence, while not letting the bad guys get away. But of course all this is just my opinion as a law student who's studying military law right now. Great blog!