Federal Courts Law Review

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FEDERAL COURTS LAW REVIEW -- 2002 Fed. Cts. L. Rev. 3

Military Tribunals, the Constitution, and the UCMJ

By Daniel A. Rezneck and Jonathan F. Potter

Abstract

Recently, the Bush Administration has decided it will use military tribunals to try suspected terrorists. The authors review the history of the use of such tribunals by the Executive Branch and the court's decisions addressing the resulting legal questions. Their analysis of that case law suggest to them that the tribunals are not unconstitutional on their face but that the Order's provision that completely blocks access to the federal courts is unconstitutional and in violation of a congressional statute. The authors note that the Order initially did not specifically indicate the procedures to be used during the trials. Fortunately, the Secretary of Defense thereafter issued an order outlining the procedural aspects of the military tribunals, many of which are similar to those specified in the Uniform Code of Military Justice and should meet most objections. The authors, however, conclude that much work remains to be done to insure that procedures in the tribunals meet pertinent constitutional demands; among the remaining troublesome issues are pendent criminal jurisdiction, appropriate judicial review of the results of the tribunals, lack of confrontation and cross-examination, and the applicability of exclusionary rules.

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