At the heart of the freedoms guaranteed Americans by the Constitution and Bill of Rights is the right of the accused to a fair and speedy trial, within the scope of American criminal law. This legal tradition has likewise carried forward into military matters, whereby enemies against which the United States armed forces are fighting are also afforded the rights of the American legal system (Frank, 2006). Because of this, however, modern warfare has become clogged and confused by the use of legal wrangling as a weapon by combatants against American troops, especially in the modern era of terrorism, whereby enemies of the state claim to be civilians entitled to due process in civilian, rather than military courts, where they stand a better chance of evading justice.
This paper will critique an article on the subject of judicial process within the military arena, entitled U.S. Military Courts and the War in Iraq, published in the 2006 Vanderbilt Journal of Transnational Law, in order to better understand the topic.
Due Process as the Terrorist’s Weapon
The article focuses in large part on the problems encountered by the Central Criminal Court of Iraq, or CCCI- a civilian American court created for the purpose of prosecuting Iraqi insurgents not as war criminals, but as civilians. In this way, the terrorist can hide behind the rights claimed under American judicial process while avoiding the fact that he has in fact inflicted military-level acts of terror, and should be treated as an enemy rather than a court defendant. Relating this fact directly back to the article allows for a critique of the article itself; specifically, the article seems to lean toward the assumption that Iraqi terrorists are entitled judicial process in civilian courts, under American laws and procedures, in the first place.
It would seem more correct that either these individuals are to be prosecuted as combatants in military courts under the Uniform Code of Military Justice, or that they be subject to the laws and procedures of the courts of Iraq. In bringing into Iraq and to enemies of America the rights of American citizens, which countless other American citizens have fought and died to preserve, seems to be the equivalent of additional attacks on the American way of life and tranquility. This is a point which the article should have articulated more clearly.
Additionally, the article gives too much weight to Islamic law, implying that Islamic law should override the efforts to create a fair and legitimate civilian court within Iraq itself. It would seem that a voice is being given to terrorists, which is exactly their goal when they maim and kill innocent people.
While there are no easy answers to the issue of judicial process for suspected terrorists, the article critiqued in this paper has offered some answers which simply do not seem to work. Therefore, in conclusion, what can fairly be said about this article is for all of the interesting information in the article, the importance seemingly given to the rights of terror suspects overshadows what was otherwise a well constructed piece of research.