Legality of the Use of Military Commissions to Try Terrorists, Memorandum Opinion for the Counsel to the President [November 6, 2001] [open pdf - 279KB]
This memorandum from the Office of Legal Counsel of the Department of Justice addresses the question of legality surrounding the use of military commissions to try terrorism suspects. "You have asked us to consider whether terrorists captured in connection with the attacks of September 11 or in connection with ongoing U.S. operations in response to those attacks could be subject to trial before a military court. The Uniform Code of Military Justice ('UCMJ'), 10 U.S.C. §§ 801-946, authorizes military commissions to try 'offenders or offenses that by statute or by the law of war may be tried by military commissions.' 10 U.S.C. § 821 (2000). The Supreme Court has interpreted identical language (then included in Article 15 of the Articles of War in effect during World War II) to incorporate customary practice and to authorize trial by military commission of any person subject to the laws of war for any offense under the laws of war. See Ex parte Quirin, 317 U.S. 1, 30 (1942). We conclude that under 10 U.S.C. § 821 and his inherent powers as Commander in Chief, the President may establish military commissions to try and punish terrorists apprehended as part of the investigation into, or the military and intelligence operations in response to, the September 11 attacks."
U.S. Dept. of Justice: http://www.justice.gov/