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Repeal of the Military Commissions Act

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Title: Repeal of the Military Commissions Act
Author: Benson, Daniel H.; Lewis, Calvin
Abstract: The Military Commissions Act should be repealed. It was an unfortunate and unnecessary anachronism in 2006, when it was enacted as a means of allowing the United States government to try by military commissions persons detained at Guantanamo Bay, Cuba. Although the Military Commissions Act of 2009 improved upon the prior version, those improvements are inadequate to remedy the fundamental flaws of the military commissions system that continue to disfigure our system of justice. The Military Commissions Act of 2009 serves no useful purpose at this time and should be removed, in its entirety, from the United States Code. The existing court-martial system under the Uniform Code of Military Justice (UCMJ) is adequate to try any remaining cases against the detainees at Guantanamo. Using the UCMJ would better ensure justice and would also eliminate the extensive delays that arose from constitutional challenges to the military commission system in federal courts. . . . This Article proceeds as follows: Part II provides useful background on the creation of military commissions by President Bush in 2001. This discussion reveals the disjunction between the perspectives of the judicial and executive branches regarding the importance of due process rights, and frames the comparative analysis of the military commissions system that follows. Part III presents a side-by-side comparison of the court-martial and military commission systems. As this Part demonstrates, though the Military Commissions Act facially resembles many aspects of the UCMJ, the Act omits several critically important protections accorded defendants in courts-martial. Part IV explains the relevant departures of the Military Commissions Act from the UCMJ in the context of the perceived objective of the Bush administration: to create an imbalanced trial system that would ensure the results that the administration desired. Part V concludes the Article by summarizing the key arguments supporting the need to use the UCMJ instead of military commissions to try the Guantanamo Bay detainees.
Date: 2010

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