Terror Suspects
The Bottom Line
U.S. federal courts, established under Article III of the U.S. Constitution, should hear cases in which terrorists are caught by domestic law enforcement. However, terrorists who are caught by members of the U.S. military overseas should be tried by military commissions or military tribunals since the evidentiary rules applied by U.S. federal courts – things like chain-of-custody requirements, and hearsay, privilege and Miranda rules – were written to govern domestic apprehensions. American soldiers are not trained in constitutional or criminal law, or domestic arrest techniques, nor should they be.
Those who believe military commissions and military tribunals are unfair and/or violate our rule of law should take comfort in two things. First, the Military Commissions Act of 2009 gives those being tried by military commissions and tribunals practically all the same procedural rights as those charged in federal court, and in some respects even more rights.
Second, in the Supreme Court case Boumediene v. Bush, the Court ruled that, for prisoners at Guantánamo Bay, “habeas privilege entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law, and the habeas court must have the power to order the conditional release of an individual unlawfully detained” – which means that federal courts have the power to review these cases and grant relief anyway.