The Constitutional Case for Military Tribunals

Today’s U.S. mil­i­tary tri­bunals are fair and bal­anced, according to Brigadier Gen­eral Mark Mar­tins, the chief pros­e­cutor of mil­i­tary com­mis­sions. “These are not the exclu­sive terror courts that some may have thought about 10 years ago,” he explained. “What you have now is an account­able insti­tu­tion that is com­men­su­rate with our highest values of jus­tice under the law.”

Mar­tins addressed the role of the reformed mil­i­tary com­mis­sions and the con­stant ten­sion between public opinion and national secu­rity last Thursday evening in the Raytheon Amphithe­ater. The event—sponsored by the Doctor of Law and Policy pro­gram at Northeastern’s College of Professional Studies—drew a score of stu­dents as well as JAG offi­cials, Green Berets, and staff from the office of Mass­a­chu­setts Gov. Deval Patrick.

Thomas Mul­likin, asso­ciate director of the college’s law and policy pro­gram, intro­duced Mar­tins as an “Amer­ican hero who is admired for his great acts and fine qualities.”

Mar­tins is respon­sible for imple­menting the changes out­lined in the Mil­i­tary Com­mis­sions Act of 2009, which amended the epony­mous act of 2006. The Depart­ment of Defense redesigned the set of pro­ce­dures for con­ducting mil­i­tary com­mis­sions in order to address con­sti­tu­tional con­cerns raised by the Supreme Court, including the right of enemy com­bat­ants to chal­lenge their deten­tions in fed­eral court.

According to news reports, more than 160 pris­oners are cur­rently being held at the Guan­tanamo Bay deten­tion center in con­nec­tion with the global war on terror. Martins—the lead pros­e­cutor in the trial of detainee Khalid Sheik Mohammed, the mas­ter­mind behind 9/11—assured skep­tics that those who would be tried for war crimes under the new act would be given a fair trial.

“This is a sharply adver­sarial process,” he argued, noting that mil­i­tary trials end in acquit­tals more often than those of the civilian variety. “Inde­pen­dent judges are sworn to uphold the Con­sti­tu­tion and com­mitted with every fiber of their being to make sure these are not just paper protections.”

Mar­tins rebutted the common claims from press as well as advo­cacy groups that mil­i­tary com­mis­sions are unfair, unnec­es­sary, and un-​​American. In the Q-​​and-​​A that fol­lowed his hour-­long lec­ture, he responded to one stu­dent who ques­tioned the fair­ness of having mil­i­tary offi­cers adju­di­cate the trial of a war crim­inal. “Power must pay tribute to reason,” he said, para­phrasing Robert H. Jackson, the chief U.S. pros­e­cutor at the Nurem­berg Trials. “We have to ensure we are not exacting vengeance and that we’re doing justice.”