Professor Scott Silliman
executive director of the Center on Law, Ethics and National Security
Senate Judiciary Committee, July 11, 2006
Silliman commented on the future of military commissions in light of the Supreme Court decision in Hamdan v. Rumsfeld:
“If the Congress passes a law which merely gives legislative sanction to the prior system for military commissions — putting everything back in place the way it was — there is no assurance that it would pass judicial muster. With regard to the Court’s determination that Common Article 3 was part of the “law of war” as referenced in Article 21 of the UCMJ, can Congress, by statute, nullify that requirement for compliance with international law as it applies to military commission procedures? Many legal scholars believe so, but it could well invite further challenges in the courts and years of further uncertainty. Merely giving Congressional sanction to the minimal level of due process in commissions which was criticized as inadequate by the Supreme Court and which fails to satisfy commonly recognized international legal standards is, I believe, imprudent.”
Senate Committee on Armed Services, July 19, 2006
Silliman argued that Congress should use the Uniform Code of Military Justice (UCMJ) as the base line for any new system of military commissions:
“The UCMJ is a fair and well-proven system of law. … It is the military criminal code used to deal with misconduct committed by members of our own armed forces, and the Supreme Court clearly implied that it could appropriately and with judicial approval be used to prosecute those at Guantanamo Bay. Further, and more importantly, the Code already provides for jurisdiction to prosecute, either by court-martial or military commission, those who violate the law of war during armed conflict.… If we were dealing with individuals who were classified as prisoners of war, the Third Geneva Convention requires that only a court-martial (or perhaps trial in federal criminal court) could be used to prosecute them; but those held at Guantanamo Bay have not been so classified, so either system under the UCMJ, courtsmartial or military commission, is permitted. To use courts-martial, the type of tribunal used for our own military personnel, with its inherent procedural protections which meet and sometimes exceed those in federal criminal trials, is clearly not appropriate. The use of Military commissions, as provided for under the Code, is therefore the better prosecutorial forum.
… We must ensure that perceived pressures to legislate quickly do not cause us to err and fail in our goal to establish a system which reflects our national values and which satisfies commonly accepted principles of international law.
… The task, then, is to identify those court-martial provisions which would clearly be impracticable when prosecuting terrorists by military commission. I suggest that those articles of the UCMJ which would not, in part or in whole, be practicable in military commissions are few; the greater number would be in the Manual for Courts-Martial, an executive order, which requires action only by the President, perhaps with Congressional approval.
Finally … I strongly urge that a committee of judge advocates be formally convened to carefully study and make recommendations to the President as to what may, in their view, be required. They are the practitioners who know the Code and the Manual best. If this proposed military commission system under authority of the UCMJ is to provide an appropriate forum for prosecuting those we now detain, as well as those who commit violations of the law of war in future conflicts, we must ensure that perceived pressures to legislate quickly do not cause us to err and fail in our goal to establish a system which reflects our national values and which satisfies commonly accepted principles of international law.”