There has been a great deal of public debate about whether or not terror suspects should be tried in U.S. civilian courts or before military commissions. Significant differences exist, so let’s look at a few.
Jurors
In a federal civilian trial, jurors are pulled from a pool of people who live in the surrounding community. In a military commission, both the judge and jurors are military officers.
Guilty Verdicts
In military commissions, some guilty verdicts require only 2/3rd of the jury to vote to convict. In civilian courts, a guilty verdict requires a unanimous vote.
Warrants
This gets to the issue of search and seizure under the Fourth Amendment to the U.S. Constitution. You need a warrant to get most evidence into a civilian court, but the same principle does not hold in a military setting. A military judge can admit evidence obtained without a warrant.
Hearsay
Hearsay occurs when someone takes the stand at trial and wants to testify to what someone else said, and then that statement is admitted to prove the truth of what was said. It is almost never allowed in civilian courts, but a military judge can allow it.
Miranda Rights
Incriminating statements made by defendants who have not been presented with a Miranda warning (i.e., “the right to remain silent”) may not be admitted in a civilian trial, but those same statements could be allowed into a military commission trial.
Terror suspects whose trials play out in a civilian court will indisputably find themselves with heightened protections and legal rights. However, regardless of whether a suspect starts out in a civilian court or a military commission it’s interesting to note that their legal appeals ultimately end up in the same place – U.S. federal court.