Can U.S. Citizen be tried by the military commission under the Constitution and laws
Ulysses S. Citizen (U.S. Citizen or U.S.), a United States citizen and long-time resident of Norfolk, VA, works at the Norfolk shipyard as a civilian. He is fed up with the United States government and decides he wants to join Al Qaeda in the ongoing war against the United States. (Note: Congress recently passed another Authorization of the Use Of Military Force which authorized the President to “use all necessary and appropriate force against Al Qaeda.”)
Unsure of how to proceed, U.S. begins doing Google searches for, “Ways to Join Al Qaeda.” Through his google searches and personal connections, U.S. finds a phone number for Alkida Leader (Al), Al Qaeda’s third in command. U.S. calls Al, who is in Pakistan, and asks to join Al Qaeda and help wage war against the United States. Somewhat hesitant that U.S. might be a double agent, Al does not invite U.S. Citizen to train with Al Qaeda armed forces in Pakistan, which all new recruits who join Al Qaeda must do. Instead, Al instructs U.S. that he could serve Al Qaeda best by bombing Norfolk, blowing up ships and killing as many civilians as possible. Al explains to U.S. Citizen that Norfolk has been a top, strategic target for Al Qaeda since the war started, but Al Qaeda has not yet had the opportunity to attack it. Thus, Al told U.S. that if he was successful, Allah would be pleased and U.S. could become a full-fledged member of Al Qaeda, with no limitations. Over the next few weeks, to prepare him for the attack, U.S. and Al spoke every day on the phone. On the phone calls, Al instructed U.S. in the ways of Al Qaeda and its beliefs, which U.S. eagerly accepted.
Excited for his opportunity to serve Al Qaeda, U.S. constructs a bomb. U.S. then drives the bomb to the shipyard, uses his badge to enter, then places a brick on the gas pedal and sends the car and bomb into the shipyard. The bomb explodes as planned. One ship is damaged and 500 civilians are killed. (Note: targeting and killing civilians is a clear violation of the laws of war.)
Immediately, U.S. Citizen is arrested. While detaining U.S. Citizen, the government gets a warrant to search U.S.’s apartment. During the search, the government learns of U.S.’s Google searches and phone calls to Al. U.S. recorded his first conversation with Al so he could listen to it over and again to make sure he did exactly what Al Qaeda wanted. Accordingly, the President orders that U.S. be tried in a military commission at Guantanamo Bay under the Military Commissions Amendment Act. This Act, passed by Congress one year prior to U.S Citizen’s arrest, authorized the President to “try by military commission, in accordance with the laws of war, anyone who is (1) part of Al Qaeda and (2) violates the law of war while engaging in hostilities against the United States.” “Hostilities” is defined in the Act as “any conflict subject to the laws of war.” The Amendment also gave the President broad discretion and authority to set the rules of procedure governing the military commissions.
Question: Can U.S. Citizen be tried by the military commission under the Constitution and laws of the United States? Make arguments on both sides as to why or why not U.S. cannot be tried by the military commission. To answer this question, rely on the material studied in Unit 7, the statutes provided in the fact pattern, and other relevant cases or legal principles studied throughout the course. Explain Supreme Court cases in detail where helpful to your answer.
Sample Solution
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