This article examines the structure and history of applicable sections of the Geneva Convention Relative to the Treatment of Prisoners of War (GPW) and their application to the proposed defendants. Section one outlines the promulgation of President Bushs military order, concluding that the system fails to provide adequately for those accorded Prisoner of War (POW) status. This article then argues that members of the Taliban and possibly certain al Qaeda members qualify for POW status under the GPW as detainees of an international conflict. In this context, Section one then identifies the issues raised by Americas current proposed use of military commissions. With this background, Section two traces the history of military commissions. The article then emphasizes the evidentiary and procedural problems associated with the post-World War II military commission rules derived from Ex parte Quirin, upon which President Bushs proposed commissions are based. Next, Section three discusses the legality of military tribunals under current international law. Section four then argues that Quirin-based military commissions fail to meet current standards for trying POWs and that they fail to satisfy the procedural and evidentiary requirements of the Uniform Code of Military Justice (UCMJ). Finally, based upon the precedent of United States v. Uchiyama, the article concludes that participating in such a commission, when it tries a POW, violates the law of war.
Judge Advocate General's Corps (JAGCNet): www.jagcnet.army.mil
The Army Lawyer (November 2003), p.18-47