Order Code RL31262
CRS Report for Congress
Received through the CRS Web
Selected Procedural Safeguards in Federal,
Military, and International Courts
January 30, 2002
Jennifer Elsea
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Selected Procedural Safeguards in Federal, Military,
and International Courts
Summary
Declaring it necessary to bring to justice those responsible for the terrorist
attacks on the United States of September 11, 2001, President Bush signed a Military
Order (M.O.) authorizing the trial by military commission of certain non-citizens. The
order directs the Secretary of Defense to establish the procedural rules for the
operation of the military commissions convened pursuant to the M.O. The
Department of Defense is reportedly drafting regulations, but few details have been
released. In the meantime, there has been much discussion about the procedural
safeguards to be applied by the military commissions. The chart that follows
compares selected procedural safeguards employed in criminal trials in federal
criminal court with parallel protective measures in military general courts-martial,
military commissions as authorized under the Military Order of November 13, and,
as a possible benchmark of international standards, the Rome Statute of the
International Criminal Court.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
General Courts-Martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Military Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
List of Tables
Selected Procedural Safeguards in Federal, Military, and International Courts . . 7

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Selected Procedural Safeguards in Federal,
Military, and International Courts
Declaring it necessary to bring to justice those responsible for the terrorist
attacks on the United States of September 11, 2001, President Bush signed a Military
Order (M.O.) authorizing the trial by military commission of certain non-citizens.1
The order directs the Secretary of Defense to establish the procedural rules for the
operation of the military commissions convened pursuant to the M.O. The
Department of Defense is reportedly drafting regulations, but few details have been
released. In the meantime, there has been much discussion about the procedural
safeguards to be applied by the military commissions. This report compares selected
procedural safeguards employed in criminal trials in federal criminal court with
parallel protective measures in military general courts-martial, military commissions
as authorized under the Military Order of November 13, and, as a possible benchmark
of international standards, the Rome Statute of the International Criminal Court.
Introduction
The Constitution imposes on the government a system of restraints to provide
that no unfair law is enforced and that no law is enforced unfairly. What is
fundamentally fair in a given situation depends in part on the objectives of a given
system of law weighed alongside the possible infringement of individual liberties that
system might impose. In the criminal law system, some basic objectives are to
discover the truth, punish the guilty proportionately with their crimes, acquit the
innocent without unnecessary delay or expense, and prevent and deter further crime,
thereby providing for the public order. Military justice shares these objectives in part,
but also serves to enhance discipline throughout the armed forces, serving the overall
objective of providing an effective national defense. The equation for international
criminal law may also consider foreign policy elements as well as international law and
treaty obligations.
The Fifth Amendment to the Constitution provides that “no person shall be ...
deprived of life, liberty, or property, without due process of law.” Due process
includes the opportunity to be heard whenever the government places any of these
fundamental liberties at stake. The Constitution contains other explicit rights
applicable to various stages of a criminal prosecution. Criminal proceedings provide
both the opportunity to contest guilt and to challenge the government’s conduct that
may have violated the rights of the accused. The system of procedural rules used to
conduct a criminal hearing, therefore, serves as a safeguard against violations of
constitutional rights that take place outside the courtroom.
1Military Order, November 13, 2001 Detention, Treatment, and Trial of Certain Non-Citizens
in the War Against Terrorism §1(a), 66 Fed. Reg. 57,833 (Nov. 16, 2001).

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CRS-2
The Bill of Rights applies to all citizens of the United States and all aliens within
the United States.2 However, the methods of application of constitutional rights, in
particular the remedies available to those whose rights might have been violated, may
differ depending on the severity of the punitive measure the government seeks to take
and the entity deciding the case. The jurisdiction of various entities to try a person
accused of a crime could have a profound effect on the procedural rights of the
accused. The type of judicial review available also varies and may be crucial to the
outcome.
International law also contains some basic guarantees of human rights, including
rights of criminal defendants and prisoners. Treaties to which the U.S. is a party are
expressly made a part of the law of the land by the Supremacy Clause of the
Constitution,3 and may be codified through implementing legislation.4 International
law is incorporated into U.S. law.5 The law of war, a subset of international law,
applies to cases arising from armed conflicts (i.e., war crimes).6 It is unclear exactly
how the law of war applies to the current hostilities involving non-state terrorists, and
the nature of the rights due to accused terrorist/war criminals may depend in part on
their status under the Geneva Conventions.
The chart that follows identifies a selection of basic rights in rough order of the
stage in the criminal justice process where they might become most important. The
text of the chart indicates some of the procedural safeguards designed to protect
these rights in different tribunals. Recognizing that fundamental fairness relies on the
system of procedural safeguards as a whole rather than individual rules, the chart is
intended only as an outline to compare some of the rules different courts and tribunals
might use to safeguard certain rights.
Federal Court
The federal judiciary is established by Article III of the Constitution and consists
of the Supreme Court and “inferior tribunals” established by Congress. It is a
separate and co-equal branch of the federal government, independent of the executive
and legislative branches, designed to be insulated from the public passions. Its
function is not to make law but to interpret law and decide disputes arising under it.
Federal criminal law and procedures are enacted by Congress and housed primarily
in title 18 of the U.S. Code. The Supreme Court promulgates procedural rules for
criminal trials at the federal district courts. These rules, namely the Federal Rules of
Criminal Procedure (Fed. R. Crim. P.) and the Federal Rules of Evidence (Fed. R.
Evid.), incorporate procedural rights that the Constitution and various statutes
2Wong Wing v. United States, 163 U.S. 228 (1896)(aliens are entitled to due process of law).
3U.S. CONST. Art. VI (“[A]ll Treaties ... shall be the Supreme Law of the Land; ...”).
4See, e.g. 18 U.S.C. § 2441 (War Crimes Act).
5See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 111 (1987).
6For a brief explanation of the sources of the law of war, see generally Terrorism and the Law
of War: Trying Terrorists as War Criminals before Military Commissions, CRS Report
RL31191 (updated Dec. 11, 2001).

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CRS-3
demand. The chart cites relevant rules or court decisions, but makes no effort to
provide an exhaustive list of authorities.
General Courts-Martial
The Constitution, in order to provide for the common defense,7 gives Congress
the power to raise, support, and regulate the armed forces,8 but makes the President
Commander-in-Chief of the armed forces.9 Article III does not give the judiciary any
explicit role in the military, and the Supreme Court has taken the view that Congress’
power “[t]o Make Rules for the Government and Regulation of the land and naval
Forces”10 is entirely separate from Article III.11 Therefore, courts-martial are not
considered to be Article III courts and are not subject to all of the rules that apply in
federal courts.12 Defendants are not able to appeal their courts-martial directly to
federal courts, but may seek relief in the form of a writ of habeas corpus, although
review may be limited.
Although military personnel are “persons” to whom the Bill of Rights applies,
in the military context it might be said that discipline is as important as liberty as
objectives of military justice. Also, the Constitution specifically exempts military
members accused of a crime from the Fifth Amendment right to a grand jury
indictment,13 from which the Supreme Court has inferred there is no right to a civil
jury in courts-martial.14 However, in part because of the different standards provided
in courts-martial, their jurisdiction is limited to those persons and offenses the military
has a legitimate interest in regulating. Courts-martial jurisdiction extends mainly to
service members on active duty, prisoners of war, and persons accompanying the
armed forces in time of declared war,15 as well as certain violators of the law of war.16
Congress regulates the armed forces largely through title 10 of the U.S. Code,
which contains as Chapter 47 the Uniform Code of Military Justice (UCMJ)
regulating the system of military courts-martial. The Supreme Court has found the
7U.S. CONST. Preamble.
8 Id. art. I § 8, cls. 11-14 (War Power).
9 Id. art. II § 2, cl. 1.
10 Id. art. I § 8, cl. 14.
11 See Dynes v. Hoover, 61 U.S. (How.) 65 (1857).
12 See WILLIAM WINTHROP, WINTHROP’S MILITARY LAW AND PRECEDENTS 48-49 (2d. ed.
1920)(describing courts-martial as instrumentalities of the executive power, provided by
Congress for the President as Commander-in-chief, to aid him in properly commanding the
army and navy and enforcing discipline therein) (emphasis in original).
13 See chart, infra.
14 See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
15 See 10 U.S.C. § 802. “In time of war” refers to war declared by Congress. United States
v. Averette, 17 USCMA 363 (1968).
16 See 10 U.S.C. § 818.

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CRS-4
procedures Congress set through the UCMJ to provide adequate procedural
safeguards to satisfy constitutional requirements and the interest in maintaining a
strong national defense.
Congress has delegated to the President the authority to make procedural rules
for the military justice system.17 The President created the Rules for Courts-Martial
(R.C.M.) and the Military Rules of Evidence (Mil. R. Evid.) pursuant to that
delegation.18 The comparison chart will cite provisions of the UCMJ and the
applicable rules, as well as Court of Military Appeals (CMA) opinions as applicable.
Military Commissions19
The Constitution empowers the Congress to declare war and “make rules
concerning captures on land and water,”20 to define and punish violations of the “Law
of Nations,”21 and to make regulations to govern the armed forces.22 The power of
the President to convene military commissions flows from his authority as
Commander in Chief of the Armed Forces and his responsibility to execute the laws
of the nation.23 Under the Articles of War and subsequent statute,24 the President has
at least implicit authority to convene military commissions to try offenses against the
law of war.25 There is, therefore, somewhat of a distinction between the authority and
objectives behind convening military courts-martial and commissions.26 Rather than
serving the internally directed purpose of maintaining discipline and order of the
troops, the military commission is externally directed at the enemy as a means of
waging successful war by punishing and deterring offenses against the law of war.
17 10 U.S.C. § 836.
18 The rules are set forth in the Manual for Courts Martial (M.C.M.), established as Exec.
Order No. 12473, Manual for Courts-Martial, United States, 49 Fed. Reg 17,152, (Apr. 23,
1984).
19For a more in-depth discussion of military commissions, see CRS Report RL31191, supra
note 4.
20 U.S. CONST. art. I, § 8, cl. 11.
21 Id. art. I, § 8, cl. 10.
22 Id. art. I, § 8, cl. 14.
23 Id. art. II.
24 The Articles of War were re-enacted at 10 U.S.C. § 801 et seq. as part of the UCMJ.
Although there is no case law interpreting the UCMJ as authorizing military commissions, the
relevant sections of the UCMJ, which recognize the concurrent jurisdiction of military
commissions to deal with “offenders or offenses designated by statute or the law of war,” are
essentially identical to the corresponding language in the Articles of War. See 10 U.S.C. §
821.
25 Ex parte Quirin, 317 U.S. 1 (1942).
26See WINTHROP, supra note 3, at 831 (describing distinction between courts-martial and
military tribunals).

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CRS-5
Jurisdiction of military commissions is limited to time of war and to trying
offenses recognized under the law of war or as designated by statute.27 While caselaw
suggests that military commissions could try U.S. citizens as enemy belligerents,28 the
Military Order of November 13, 2001 limits their jurisdiction to non-citizens.
As non-Article III courts, military commissions are not subject to the same
constitutional requirements that are applied in Article III courts.29 Congress has
delegated to the President the authority to set the rules of procedure and evidence for
military tribunals, applying “the principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United States district court” insofar as
he considers it practicable.30 The rules “may not be contrary to or inconsistent with
the UCMJ.”31
The United States first used military commissions to try enemy belligerents
accused of war crimes during the occupation of Mexico in 1847, and made heavy use
of them in the Civil War. However, no military commissions have been convened
since the aftermath of World War II. Because of the lack of standards of procedure
used by military commissions, it is difficult to draw a meaningful comparison with the
other types of tribunals. The comparison chart will cite the language of the M.O. as
a baseline for comparing the possible terrorist tribunals to other courts, supplemented
by language of the UCMJ expressly applicable to such tribunals and historical
precedent where it may be relevant. It should be emphasized that the actual
procedures to be used have yet to be pronounced and that historical precedent is not
necessarily binding. The chart includes the column only to help analyze what might
be possible under current law.
The International Criminal Court
As mentioned above, it is difficult to ascertain exactly what procedural
safeguards are due under the international law of war. The Nuremberg and Tokyo
trials established by the Allies at the end of World War II provide some precedent;
however, advances in international human rights law probably make the procedural
rules then used obsolete for today’s trials. Perhaps the most recent embodiment of
the requirements of the international law of war to try accused war criminals is to be
found in the procedures of the not-yet-operational International Criminal Court (ICC)
established by the Rome Statute.32 For this reason, the ICC will be included on the
27 10 U.S.C. § 821. Statutory offenses for which military commissions may be convened are
limited to aiding the enemy, 10 U.S.C. § 904, and spying, 10 U.S.C. § 906.
28 See Ex parte Quirin, 317 U.S. 1 (1942).
29 See Ex parte Quirin, 317 U.S. at 38; Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866)
(noting a servicemember “surrenders his right to be tried by the civil courts”).
30 10 U.S.C. § 836.
31 Id.
32 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (1988). The
United States has signed but not ratified the Rome Statute. See The Rome Statute of the
(continued...)

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CRS-6
following chart as representative of international standards for comparison purposes
only.
32(...continued)
International Criminal Court, Selected Legal and Constitutional Issues, CRS Report,
RL30091 (Feb. 22, 1999).

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CRS-7
Selected Procedural Safeguards in Federal, Military, and International Courts
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
Presumption of
“The principle that there is a
If the defendant fails to enter
If the defendant fails to enter
Unclear. Under M.O.
“Everyone shall be presumed
Innocence
presumption of innocence in
a proper plea, a plea of not
a proper plea, a plea of not
President first determines
to be innocent until proven
favor of the accused is the
guilty will be entered.
guilty will be entered.
there is “reason to believe”
guilty before the Court ....”
undoubted law, axiomatic
person is or was a member of
Fed. R. Crim. P. 11(a).
R.C.M. 910(b).
Rome Statute Art. 66.
and elementary, and its
al Qaeda, has engaged in acts
enforcement lies at the
Defendant is entitled to jury
Members of court martial
of international terrorism, or
foundation of the
instructions explaining that
must be instructed that the
has knowingly harbored such
administration of our
guilt must be proved on the
“accused must be presumed to
a person.
criminal law.”
evidence beyond a reasonable
be innocent until the
M.O. § 2.
doubt.
accused’s guilt is established
Coffin v. United States, 156
by legal and competent
U.S. 432, 453 (1895).
Taylor v. Kentucky, 436 U.S.
evidence beyond a reasonable
478 (1978).
doubt.”
Defendant is entitled to
R.C.M. 920(e).
appear in court without
unnecessary physical
The accused shall be properly
restraints or other indicia of
attired in uniform with grade
guilt, such as appearing in
insignia and any decorations
prison uniform, that may be
to which entitled. Physical
prejudicial to jury.
restraint shall not be imposed
unless prescribed by the
See Holbrook v. Flynn, 475
military judge.
U.S. 560 (1986).
R.C.M. 804.
Right to Remain

“No person…shall be
Incriminating statements
Coerced confessions or
Unclear. The M.O. does not
During an investigation, if
Silent
compelled in any criminal
made by defendant under
confessions made without
require warning or bar use of
there is reason to believe a
case to be a witness against
duress or without prior
statutory equivalent of
statements made during
person has committed a crime
himself ….”
Miranda warning are
Miranda warning are not
military interrogation from
under the jurisdiction of the
inadmissible as evidence of
admissible as evidence.
criminal proceedings.
ICC, that person has the right
Amendment V.
guilt in a criminal trial.
“[t]o remain silent, without
Art. 31, UCMJ, 10 U.S.C. §
Art. 31(a), UCMJ bars
such silence being a
Miranda v. Arizona, 384 U.S.
831.
persons subject to it from
consideration in the
436 (1966).
compelling any individual to
The prosecutor must notify
determination of guilt or

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CRS-8
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
Before a jury is allowed to
the defense of any
make a confession, but art.
innocence.”
hear evidence of a defendant’s
incriminating statements
31(d) bars the use of
Rome Statute Art. 54.
confession, the court must
made by the accused that are
compelled statements only at
determine that it was
relevant to the case prior to
courts-martial.
“Evidence obtained by means
voluntarily given.
the arraignment. Motions to
of a violation of this Statute or
Art. 31, UCMJ, 10 U.S.C. §
suppress such statements must
internationally recognized
18 U.S.C. § 3501.
831.
be made prior to pleading.
human rights shall not be
admissible…”
Mil. R. Evid. 304.
Rome Statute Art. 69(7).
Freedom from
“Evidence obtained by means
“The right of the people to be
Evidence, including
“Evidence obtained as a result
Not addressed in M.O.
Unreasonable
of a violation of this Statute or
secure ... against
derivative evidence, gained
of an unlawful search or
Searches
internationally recognized
&
unreasonable searches and
through unreasonable
seizure ... is inadmissible
Seizures
human rights shall not be
seizures, shall not be
searches and seizures may be
against the accused ...” unless
admissible ….”
violated; no Warrants shall
excluded in court.
certain exceptions apply.
issue, but upon probable
Boyd v. United States, 116
Mil. R. Evid. 311.
Rome Statute Art. 69(7).
cause…”
U.S. 616 (1886); Nardone v.
“Authorization to search”
United States, 308 U.S. 338
Amendment IV.
may be oral or written, and
(1938); Fed. R. Crim. P. 41.
may be issued by a military
A search warrant issued by a
judge or an officer in
magistrate on a showing of
command of the area to be
probable cause is generally
searched, or if the area is not
required for law enforcement
under military control, with
agents to conduct a search of
authority over persons subject
an area where the subject has
to military law or the law of
a reasonable expectation of
war. It must be based on
privacy, including searches
probable cause.
and seizures of telephone or
Mil. R. Evid. 315.
other communications and
emissions of heat and other
Interception of wire and oral
phenomena detectable with
communications within the
means other than human
United States requires judicial
senses.
application in accordance
with 18 U.S.C. §§ 2516 et
Katz v. United States, 389
seq.

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CRS-9
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
U.S. 347 (1967).
Mil. R. Evid. 317.
Evidence resulting from
A search conducted by foreign
overseas searches of
officials is unlawful only if
American property by foreign
the accused is subject to
officials is admissible unless
“gross and brutal treatment.”
foreign police conduct shocks
Mil. R. Evid. 311(c).
judicial conscience or
participation by U.S. agents is
so substantial as to render the
action that of the United
States.
U.S. v. Barona, 56 F.3d 1087
(9th Cir. 1995).
Assistance of
“In all criminal prosecutions,
Defendants in criminal cases
The defendant has a right to
M.O. indicates defendants
“…the accused shall be
Effective Counsel
the accused shall enjoy the
have the right to
military counsel at
will be represented by
entitled… to have legal
right … to have the
representation by an attorney
government expense. The
attorneys, but does not
assistance assigned by the
Assistance of Counsel for his
at all stages of prosecution.
defendant may choose
explicitly provide for a
Court where the interests of
defense.”
The defendant may hire an
counsel, if that attorney is
defendant’s right to retain
justice so require, and without
attorney or, if indigent, have
reasonably available, and may
counsel of choice.
payment if the accused lacks
Amendment VI.
counsel appointed at the
hire a civilian attorney in
Regulations are to provide for
sufficient means to pay for it;
government’s expense. If two
addition to military counsel.
qualifications of attorneys.
…”
or more co-defendants are
Art 38, UCMJ, 10 U.S.C. §
M.O. § 4(c).
represented by one attorney,
Rome Statute Art. 67(1)(d).
838.
the court must inquire as to
In some past military
“… the accused shall be
whether a conflict of interest
Appointed counsel must be
tribunals, defendants were not
entitled … to communicate
exists.
certified as qualified and may
permitted to choose attorneys,
freely with counsel of
not be someone who has taken
nor were there procedures to
Fed. R. Crim. P. 44.
accused's choosing ….”
any part in the investigation
avoid conflicts of interest.
Conversations between
or prosecution, unless
For example, the eight Quirin
Rome Statute Art. 67(1)(b).
attorneys and clients are
explicitly requested by the
defendants were not permitted
privileged.
defendant.
to choose counsel and seven
were represented by the same
Fed. R. Evid. 501
Art. 27, UCMJ, 10 U.S.C. §
attorney, although one of
827.
Procedures for ensuring
them had betrayed the others
adequate representation of
The attorney-client privilege
to the FBI.

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CRS-10
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
defendants are outlined at 18
is honored.
U.S.C. §§ 3005 (capital cases)
Mil. R. Evid. 502.
and 3006A.
Right to Indictment
“No person shall be held to
Where the accused is in
The right to indictment by
Does not apply to offenses
The Pre-Trial Chamber
and Presentment
answer for a capital, or
danger of being subjected to
grand jury is explicitly
against the law of war.
conducts a hearing “to
otherwise infamous crime,
an infamous punishment if
excluded in “cases arising in
determine whether there is
Ex Parte Quirin, 317 U.S. 1
unless on a presentment or
convicted, he has the right to
the land or naval forces.”
sufficient evidence to establish
(1942).
indictment of a Grand Jury,
insist that he shall not be tried
substantial grounds to believe
Amendment V
except in cases arising in the
except on the accusation of a
M.O. allows individuals to be
that the accused committed
land or naval forces, or in the
grand jury.
Whenever an offense is
tried by military commission
each of the crimes charged.
Militia, when in actual
alleged, the commander is
once it is determined in
Based on its determination,
Ex parte Wilson, 114 U.S.
service in time of War or
responsible for initiating a
writing by the President that
the Pre-Trial Chamber shall
417 (1885); Fed. R. Crim. P.
public danger ....”
preliminary inquiry and
there is “reason to believe”the
confirm those charges in
7.
deciding how to dispose of the
accused is or was a member of
relation to which it has
Amendment V.
Jurors must be selected from a
offense.
al Qaeda, has engaged in acts
determined that there is
fair cross section of the
of international terrorism, or
sufficient evidence; ... decline
R.C.M. 303-06.
community; otherwise, an
has knowingly harbored such
to confirm those charges in
accused can challenge the
a person.
relation to which it has
indictment.
determined that there is
M.O. § 2.
insufficient evidence; ... or
28 U.S.C. §§ 1861 et seq.
adjourn the hearing and
Once an indictment is given,
request the Prosecutor to
its scope may not be
[provide further evidence or
increased.
amend the charges] ....”
Ex parte Bain, 121 U.S. 1
Rome Statute Art. 61.
(1887).
Charges may be amended up
(Amendments to an
to the time of the trial but are
indictment must undergo
subject to rehearing.
further grand jury process.)
Id.
Right to Written
“In all criminal prosecutions,
Defendant is entitled to be
Charges and specifications
Not specifically addressed in
“… the person shall be
Statement of
the accused shall enjoy the
informed of the nature of the
must be signed under oath
M.O.
provided with a copy of the …
Charges
right…to be informed of the
charge with sufficiently
and made known to the
charges…”

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CRS-11
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
nature and cause of the
reasonable certainty to allow
accused as soon as
“[C]harges of violations of the
Rome Statute Art. 61(3).
accusation; …”
for preparation of defense.
practicable.
law of war triable before a
military tribunal need not be
Cook v. United States, 138
Art. 30, UCMJ, 10 U.S.C. §
Amendment VI.
stated with the precision of a
U.S. 157 (1891).
830.
common law indictment.”
In re Yamashita, 327 U.S. 1
(1946).
Right to be Present
The Confrontation Clause of
The language, history, and
The presence of the accused is
Not addressed. M.O. does not
"The accused shall be present
at Trial
Amendment VI guarantees
logic of Rule 43 support a
required during arraignment,
appear to contemplate trials in
during the trial."
the accused's right to be
straightforward interpretation
at the plea, and at every stage
absentia.
present in the courtroom at
that prohibits the trial in
of the court-martial unless the
Rome Statute Art. 63.
every stage of his trial.
absentia of a defendant who is
accused waives the right by
not present at the beginning
voluntarily absenting him or
Illinois v. Allen, 397 U.S.
of trial.
herself from the proceedings
337 (1970).
after the arraignment or by
Crosby v. United States, 506
persisting in conduct that
U.S. 255, 262 (1993); Fed. R.
justifies the trial judge in
Crim. P. 43.
ordering the removal of the
accused from the proceedings.
When defendant knowingly
absents himself from court
R.C.M. 801.
during trial, court may
“proceed with trial in like
manner and with like effect as
if he were present.”
Diaz v. United States, 223
U.S. 442, 455 (1912).
Prohibition against
“No ... ex post facto law shall
Congress may not pass a law
Courts-martial will not
M.O. provides for trial of
“A person shall not be
Ex Post Facto
be passed.”
punishing conduct that was
enforce an ex post facto law,
individuals for “any and all
criminally
Crimes
not a crime when perpetrated,
including increasing amount
offenses triable by military
responsible…unless the
Art. I, § 9, cl. 3.
increasing the possible
of pay to be forfeited for
commission.”
conduct in question
sentence for a crime, or
specific crimes.
constitutes, at the time it takes

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CRS-12
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
reducing the government’s
U.S. v. Gorki, 47 M.J. 370
place, a crime within the
evidentiary burden.
(1997).
jurisdiction of the Court.”
Calder v. Bull, 3 Dall. (3
Rome Statute Art. 22.
U.S.) 386 (1798); Ex Parte
Garland, 4 Wall (71 U.S.)
1867.
Protection against
"… nor shall any person be
Jeopardy attaches once the
Double jeopardy clause
M.O. provides that a person
“No person who has been
Double Jeopardy
subject for the same offence
jury is sworn or where there is
applies.
subject to the order must be
tried by another court…shall
to be twice put in jeopardy of
no jury, when the first
turned over to the Secretary of
be tried by the Court with
See Wade v. Hunter, 336 US
life or limb; …"
evidence is presented. If the
Defense upon demand, and
respect to the same
684, 688-89 (1949).
trial is terminated after
reserves the authority to direct
conduct…”
Amendment V.
jeopardy has attached, a
Art. 44, UCMJ prohibits
the Secretary of Defense to
“No person who has been
second trial may be barred in
double jeopardy, provides for
transfer control of such a
Subject to “dual sovereign”
tried by another court ... shall
a court under the same
jeopardy to attach after
person to another
doctrine, that is, federal and
be tried by the Court with
sovereign, particularly where
introduction of evidence.
governmental authority. If a
state courts may prosecute an
respect to the same conduct
it is prosecutorial conduct
defendant before a U.S. court
individual for the same
10 U.S.C. § 844.
unless the proceedings in the
that brings about the
is removed for trial by
conduct without violating the
other court [were not properly
termination of the trial.
General court-martial
military tribunal for the same
clause.
conducted].”
proceeding is considered to be
conduct, double jeopardy
Illinois v. Somerville, 410
a federal trial for double
could become an issue.
Rome Statute Art. 20
U.S. 458 (1973).
jeopardy purposes. Double
M.O. §§ 2(c), 7(e).
jeopardy does not result from
charges brought in state or
foreign courts, although
court-martial in such cases is
disfavored.
U. S. v. Stokes, 12 M.J. 229
(C.M.A. 1982).
Once military authorities have
turned service member over to
civil authorities for trial,
military may have waived
jurisdiction for that crime,
although it may be possible to

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CRS-13
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
charge the individual for
another crime arising from
the same conduct.
See 54 AM. JUR. 2D, Military
and Civil Defense §§ 227-28.
Speedy & Public
“In all criminal prosecutions,
Trial is to commence within
In general, accused must be
Military commissions are
“... the accused shall be
Trial
the accused shall enjoy the
seventy days of indictment or
brought to trial within 120
exempt from statutory
entitled to a public hearing ...
right to a speedy and public
original appearance before
days of the preferral of
requirements for speedy trial.
trial, ....”
court.
charges or the imposition of
“the accused shall be entitled
18 U.S.C. § 3172.
restraint, whichever date is
... to be tried without undue
Amendment VI.
18 U.S.C. § 3161.
earliest.
M.O. appears to suggest
delay; ....”
“The purpose of the
Closure of the courtroom
possible indefinite detention
R.C.M. 707(a).
Rome Statute Arts. 67(1),
requirement of a public trial
during trial proceedings is
without trial or charge.
67(1)(c).
was to guarantee that the
justified only if 1) the
The right to a public trial
M.O. §§ 1(e), 2(b), 4(a).
accused would be fairly dealt
proponent of closure advances
applies in courts-martial but
with and not unjustly
an overriding interest likely to
is not absolute.
M.O. authorizes the Secretary
condemned. History had
be prejudiced; 2) the closure
of Defense to establish rules
R.C.M. 806.
proven that secret tribunals
is no broader than necessary;
for the “conduct, closure of,
were effective instruments of
3) the trial court considers
The military trial judge may
and access to proceedings”
oppression.”
reasonable alternatives to
exclude the public from
that will protect information
closure; and 4) the trial court
portions of a proceeding for
that is classified or
Estes v. State of Tex., 381
makes findings adequate to
the purpose of protecting
“classifiable” pursuant to
U.S. 532, 539 (1965).
support closure.
classified information if the
executive order or otherwise
prosecution demonstrates an
protected by law.
See Waller v. Georgia, 467
overriding need to do so and
U.S. 39, 48 (1984).
the closure is no broader than
necessary.
United States v. Grunden, 2
M.J. 116 (CMA 1977).
“The onus is on the
Burden &
Due Process requires the
Defendant is entitled to jury
Members of court martial
Unclear. M.O. does not
Prosecutor to prove the guilt
Standard of
prosecution to prove the
instructions clarifying that the
must be instructed that the
establish standard of proof.
of the accused ....
Proof
defendant guilty of each
prosecution has the burden of
burden of proof to establish
element of a crime beyond a
presenting evidence sufficient
guilt is upon the government
“In order to convict the
reasonable doubt.
to prove guilt beyond a
and that any reasonable doubt
accused, the Court must be

---

CRS-14
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
In re Winship, 397 U.S. 358
reasonable doubt.
must be resolved in favor of
convinced of the guilt of the
(1970).
the defendant.
accused beyond reasonable
Cool v. United States, 409
doubt.”
U.S. 100 (1978).
R.C.M. 920(e).
Rome Statute Art. 66.
Privilege Against
“No person … shall be
Defendant may not be
No person subject to the
M.O. does not explicitly
“[T]he accused shall be
Self-Incrimination
compelled in any criminal
compelled to testify. Jury may
UCMJ may compel any
address self-incrimination,
entitled … not to be
case to be a witness against
not be instructed that guilt
person to answer
but art. 31, UCMJ mandates
compelled to testify or to
himself…”
may be inferred from the
incriminating questions.
that “no person subject to [the
confess guilt ….”
defendant’s refusal to testify.
UCMJ] may compel a person
Art. 31(a) UCMJ, 10 U.S.C. §
Amendment V.
to make a statement or
Rome Statute Arts. 54(1)(a),
Griffin v. California, 380 U.S.
831(a).
produce evidence before any
67(1)(g).
609 (1965).
Defendant may not be
military tribunal if the
Any individual questioned
Witnesses may not be
compelled to give testimony
statement or evidence is not
during an investigation
compelled to give testimony
that is immaterial or
material to the issue and may
“[s]hall not be compelled to
that may be incriminating
potentially degrading.
tend to degrade him.”
incriminate himself or herself
unless given immunity for
Art. 31(c), UCMJ, 10 U.S.C.
Art. 31(c) UCMJ (emphasis
or to confess guilt; [and s]hall
that testimony.
§ 831(c).
added), 10 U.S.C. § 831.
not be subjected to any form
18 U.S.C. § 6002.
of coercion, duress or threat,
No adverse inference is to be
Witnesses may not be
to torture or to any other form
drawn from a defendant’s
compelled to give testimony
of cruel, inhuman or
refusal to answer any
that may be incriminating
degrading treatment or
questions or testify at court-
unless given immunity for
punishment; ....”
martial.
that testimony.
Rome Statute Art. 55.
Mil. R. Evid. 301(f).
18 U.S.C. § 6002 (applicable
to any proceedings before an
Witnesses may not be
executive department,
compelled to give testimony
including the Department of
that may be incriminating
Defense or branch of the
unless granted immunity for
Armed Services. 18 U.S.C. §
that testimony by a general
6001; 5 U.S.C. §§ 101-02)
court-martial convening
authority, as authorized by the
Attorney General, if required.
18 U.S.C. § 6002; R.C.M.
704.

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CRS-15
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
Right to Examine or “In all criminal prosecutions,
Rules of Evidence prohibit
Hearsay rules apply as in
Hearsay evidence admissible
“[T]he accused shall be
Have Examined
the accused shall enjoy the
generally the introduction at
federal court.
if the commission determines
entitled … to examine, or to
Adverse Witnesses right … to be confronted with
trial of statements made out of
such evidence would “have
have examined … the
Mil. R. Evid. 801 et seq.
the witnesses against him;
court to prove the truth of the
probative value to a
witnesses against him or her
….”
matter stated unless the
In capital cases, sworn
reasonable person.”
….”
declarant is available for
depositions may not be used
M.O. § 4(c)(3).
Amendment VI.
cross-examination at trial
in lieu of witness, unless
Rome Statute Art. 67(1)(e).
(hearsay rule).
court-martial is treated as
Art. 49(d), UCMJ, allowing
non-capital or it is introduced
for duly authenticated
Fed. R. Evid. 801 et seq.
by the defense.
depositions to be read into
The government is required to
evidence in non-capital cases,
Art. 49, UCMJ, 10 U.S.C. §
disclose to defendant any
applies to military
849.
relevant evidence in its
commissions.
possession or that may
become known through due
diligence.
Fed. R. Crim. P. 16.
Right to
“In all criminal prosecutions,
Defendants have the right to
Defendants before court-
M.O. does not address
“…the accused shall be
Compulsory
the accused shall enjoy the
subpoena witnesses to testify
martial have the right to
subpoenas. Art. 46, UCMJ,
entitled…to obtain the
Process to Obtain
right … to have compulsory
in their defense. The court
compel appearance of
guarantees to all parties of
attendance and examination
Witnesses
process for obtaining
may punish witnesses who fail
witnesses necessary to their
court-martial the opportunity
of witnesses on his or her
witnesses in his favor, ….”
to appear.
defense.
to obtain evidence and
behalf…”
witnesses, but empowers
Fed. R. Crim. Pro. Rule 17.
R.C.M. 703.
Amendment VI.
military commissions as well
Rome Statute Art. 67(1)(e).
Process to compel witnesses
as courts-martial to hold
in court-martial cases is to be
witnesses in contempt for
similar to the process used in
failure to appear.
federal courts.
Art. 46, UCMJ, 10 U.S.C. §
Art. 46, UCMJ, 10 U.S.C. §
846.
846.
Right to Trial by
“The Judicial Power of the
The independence of the
A qualified military judge is
M.O. does not expressly
“The judges shall be
Impartial Judge
United States, shall be vested
judiciary from the other
detailed to preside over the
provide for measures to
independent in the
in one supreme Court, and in
branches was established to
court-martial. The convening
ensure impartiality of the
performance of their

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CRS-16
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
... inferior courts .... The
ensure trials are decided
authority may not prepare or
members of tribunals. Article
functions.”
Judges ... shall hold their
impartially, without the
review any report concerning
37, UCMJ applies to “other
Rome Statute Art. 40.
Offices during good
“potential domination by
the performance or
military tribunals” as to the
Behaviour, and shall receive
other branches of
effectiveness of the military
prohibition of coercion or
“A judge shall not participate
... a Compensation, which
government.”
judge.
unlawful influence by any
in any case in which his or
shall not be diminished
person subject to the UCMJ,
her impartiality might
United States v. Will, 449
Art. 26, UCMJ, 10 U.S.C. §
during their Continuance in
but does not appear to
reasonably be doubted on any
U.S. 200, 217-18 (1980).
826.
Office.”
prohibit admonishment,
ground. A judge shall be
Judges with a pecuniary
Article 37, UCMJ, prohibits
censure, or reprimand of its
disqualified from a case ... if,
Article III § 1.
interest in the outcome of a
unlawful influence of courts-
members by the convening
inter alia, that judge has
The Due Process clause of the
case or other conflicts of
martial through
authority or commanding
previously been involved in
Fifth Amendment requires
interest are disqualified and
admonishment, censure, or
officer.
any capacity in that case
trial by impartial judge.
must recuse themselves.
reprimand of its members by
before the Court or in a
Art. 37, UCMJ, 10 U.S.C. §
the convening authority or
related criminal case at the
Tumey v. Ohio, 273 U.S. 510
28 U.S.C. § 455.
837.
commanding officer, or any
national level involving the
(1927).
unlawful attempt by a person
person being investigated or
subject to the UCMJ to coerce
prosecuted ....”
or influence the action of a
Rome Statute Art. 41.
court-martial or convening
authority.
Art. 37, UCMJ, 10 U.S.C. §
837.
Right to Trial By
“The Trial of all Crimes,
The pool from which juries
A military accused has no
Crimes against the law of war
The Rome Statute follows the
Impartial Jury
except in Cases of
are drawn must represent a
Sixth Amendment right to a
are not required to be tried by
civil law tradition of
Impeachment, shall be by
fair cross section of the
trial by petit jury.
jury.
employing a panel of judges
Jury; ....”
community.
to decide questions of both
Ex Parte Quirin, 317 U.S. 1,
Ex Parte Quirin, 317 U.S. 1
fact and law. There is no
Art III § 2 cl. 3.
Taylor v. Louisiana, 419 U.S.
39-40 (1942) (dicta).
(1942).
provision for trial by jury.
522 (1975).
“In all criminal prosecutions,
However, “Congress has
the accused shall enjoy the
There must further be
provided for trial by members
right to a ... trial, by an
measures to ensure individual
at a court-martial.”
impartial jury of the state ....”
jurors selected are not biased
United States v. Witham, 47
(i.e., the voir dire process).
MJ 297, 301 (1997); Art. 25,
Amendment VI.
Lewis v. United States, 146
UCMJ, 10 U.S.C. § 825.
U.S. 370 (1892); see Fed. R.

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CRS-17
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
Crim. P. 24 (peremptory
The Sixth Amendment
challenges).
requirement that the jury be
impartial applies to court-
The trial must be conducted
martial members and covers
in a manner designed to avoid
not only the selection of
exposure of the jury to
individual jurors, but also
prejudicial material or undue
their conduct during the trial
influence.
proceedings and the
If the locality of the trial has
subsequent deliberations.
been so saturated with
United States v. Lambert, 55
publicity about a case that it is
M.J. 293 (2001).
impossible to assure jurors
will not be affected by
The absence of a right to trial
prejudice, the defendant is
by jury precludes criminal
entitled to a change of venue.
trial of civilians by court-
martial.
Irvin v. Dowd, 366 U.S. 717
(1961).
Reid v. Covert, 354 U.S. 1
(1957); Kinsella v. United
States ex rel. Singleton, 361
U.S. 234 (1960).
Right to Appeal
“The Privilege of the Writ of
Originally, the writ of habeas
The writ of habeas corpus
The language of the M.O.
The Rome Statute provides for
to Independent
Habeas Corpus shall not be
corpus permitted collateral
provides the primary means
appears to exclude review by
appeal of a conviction or
Reviewing
suspended, unless when in
attack upon a prisoner's
by which those sentenced by
any civilian court.
sentence to the Appeals
Authority
Cases of Rebellion or
conviction only if the
military court, having
Chamber of the ICC at any
“[T]he individual shall not be
Invasion the public Safety
sentencing court lacked
exhausted military appeals,
time after trial if new
privileged to seek any remedy
may require it”
subject matter jurisdiction. It
can challenge a conviction or
evidence becomes available,
or maintain any proceeding,
later evolved into an avenue
sentence in a civilian court.
even after the accused’s death.
Article I § 9 cl. 2.
directly or indirectly, or to
for the challenge of federal
The scope of matters that a
have any such remedy or
Rome Statute Art. 84.
and state convictions on other
court will address is more
proceeding sought on the
due process grounds, to
narrow than in challenges of
However, it does not
individual's behalf, in (i) any
determine whether a
federal or state convictions.
explicitly provide for appeal
court of the United States, or
prisoner’s detention is
to another international court
Burns v. Wilson, 346 U.S.
any State thereof, (ii) any
“contrary to the Constitution
or the civilian courts of any
137 (1953).
court of any foreign nation,
or laws or treaties of the
state.
or (iii) any international
United States.”
tribunal.”

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CRS-18
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
28 U.S.C. §§ 2241 et seq.
M.O. §7(b)(2).
Similar language was held not
to bar habeas corpus review
in ex parte Quirin, but habeas
corpus review was denied in
other most other cases tried by
military commissions, e.g.
Johnson v. Eisentrager, 339
U.S. 763 (1950); In re
Application of Homma, 327
U.S. 759, 760 (1946); Ex
parte Mudd, 17 F. Cas. 954
(S.D. Fla. 1868).
Protection
“Excessive bail shall not be
The death penalty is not per
Death may only be adjudged
Conviction and sentencing
Penalties are limited to
against
required, nor excessive fines
se unconstitutional, but its
for certain crimes where the
requires two-thirds
imprisonment, fines, and
Excessive
imposed, nor cruel and
discriminatory and arbitrary
defendant is found guilty by
concurrence of commission
forfeiture of assets; there is no
Penalties
unusual punishments
imposition may be, and the
unanimous vote of court-
members present, a majority
death penalty.
inflicted.”
death penalty may not be
martial members present at
of members being present.
Rome Statute Art. 77.
automatic.
the time of the vote. Prior to
Sentences can include life
Amendment VIII.
arraignment, the trial counsel
imprisonment or death.
See Gregg v. Georgia, 428
must give the defense written
U.S. 153 (1976); 18 U.S.C.§
M.O. § 4.
notice of aggravating factors
3592 (mitigating /aggravating
the prosecution intends to
Charge of spying during time
circumstances).
prove.
of war under article 106,
When the death penalty may
UCMJ, is triable by military
R.C.M. 1004.
be imposed, the defendant
commission and on conviction
shall be provided a list of
A conviction of spying during
carries a mandatory death
potential jurors and witnesses,
time of war under article 106,
penalty.
unless the court finds that
UCMJ, carries a mandatory
10 U.S.C. § 906.
such action might jeopardize
death penalty.
the life or safety of any
Aiding the enemy is also
10 U.S.C. § 906.
person.
triable by military
commission and may be
18 U.S.C. § 3432.
punished by death.
A special hearing is held to
10 U.S.C. § 904.

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CRS-19
U.S. Constitution
Federal Court
General Courts-Martial
Military Commissions
Rome Statute of the ICC
determine whether the death
sentence is warranted.
18 U.S.C. § 3593.

---