The Prosecution of War Crimes: Military Commissions and the Procedural and Substantive Protections Beyond International Law

This Article examines the procedures contained in the Military Commissions Act of 2006 (“MCA”) and finds that they are consistent with the practice of prior military tribunals, domestic and international law, and recent U.S. Supreme Court decisions. The Article discusses specifically two questions that have arisen since the U.S. Supreme Court's decision in Hamdan v. Rumsfeld and Congress's subsequent passage of the MCA. First, do the procedures in the MCA comport with international standards? The Article considers the procedures arising from international agreements and those used in military tribunals during and after World War II, the international tribunals for Rwanda, the former Yugoslavia, and the International Criminal Court.

Second, does Congress have the authority to prescribe almost all the rules for military commissions? The conclusion is that both questions should be answered affirmatively.