Order Code RL31600
CRS Report for Congress
Received through the CRS Web
The Department of Defense Rules for Military
Commissions: Analysis of Procedural Rules and
Comparison with Proposed Legislation and the
Uniform Code of Military Justice
Updated August 4, 2005
Jennifer Elsea
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

The Department of Defense Rules for Military
Commissions: Analysis of Procedural Rules and
Comparison with Proposed Legislation and the Uniform
Code of Military Justice
Summary
November 13, 2001, President Bush issued a Military Order (M.O.) pertaining
to the detention, treatment, and trial of certain non-citizens in the war against
terrorism. Military commissions pursuant to the M.O. began in November, 2004,
against four persons declared eligible for trial, but proceedings were suspended after
a federal district court found one of the defendants could not be tried under the rules
established by the Department of Defense. The D.C. Circuit Court of Appeals
reversed that decision, Rumsfeld v. Hamdan, which will allow the military tribunals
to resume.
The M.O. has been the focus of intense debate both at home and abroad. Critics
argued that the tribunals could violate the rights of the accused under the Constitution
as well as international law, thereby undercutting the legitimacy of any verdicts
rendered by the tribunals. The Administration responded by publishing a series of
military orders and instructions clarifying some of the details. The procedural
aspects of the trials are to be controlled by Military Commission Order No. 1
(“M.C.O. No. 1”). The Department of Defense also released two more orders and
nine “Military Commission Instructions,” which set forth the elements of some
crimes that may be tried, establish guidelines for civilian attorneys, and provide other
administrative guidance. These rules were praised as a significant improvement over
what might have been permitted under the M.O., but some argue that the
enhancements do not go far enough.
This report provides a background and analysis comparing military commissions
as envisioned under M.C.O. No. 1 to general military courts-martial conducted under
the UCMJ. The report notes some of the criticism directed at the President’s M.O.,
and explains how those concerns are addressed by the military commission orders
and instructions. A summary of the Hamdan case follows, as well as an overview of
relevant legislation (H.R. 3044 and H.R. 3038). Finally, the report provides two
charts to compare the regulations issued by the Department of Defense to standard
procedures for general courts-martial under the Manual for Courts-Martial and to
proposed legislation. The second chart, which compares procedural safeguards
incorporated in the regulations with established procedures in courts-martial, follows
the same order and format used in CRS Report RL31262, Selected Procedural
Safeguards in Federal, Military, and International Courts
, in order to facilitate
comparison with safeguards provided in federal court and the International Criminal
Court.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Subject-Matter Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Temporal and Spatial Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Composition and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Procedures Accorded the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Open Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Right to Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Right to Face One’s Accuser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Admissibility of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Post-Trial Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Review and Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Protection against Double Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Rumsfeld v. Hamdan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Role of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
List of Tables
Table 1. Comparison of Courts-Martial and Military Commission Rules . . . . . 30
Table 2. Comparison of Procedural Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . 33

The Department of Defense Rules for
Military Commissions: Analysis of
Procedural Rules and Comparison with
Proposed Legislation and the Uniform Code
of Military Justice
Introduction
Rasul v. Bush, issued by the U.S. Supreme Court at the end of its 2003 - 2004
term, clarified that U.S. courts do have jurisdiction to hear petitions for habeas
corpus
on behalf the approximately 550 persons detained at the U.S. Naval Station
in Guantanamo Bay, Cuba, in connection with the war against terrorism.1 It appears
that federal courts will play a role in determining whether the military commissions,
established pursuant to President Bush’s Military Order (M.O.) of November 13,
2001,2 are valid under U.S. constitutional and statutory law, and possibly under
international law. More than a dozen petitions for habeas corpus are pending before
the federal District Court for the District of Columbia. In one case, a federal judge
ruled that a detainee is entitled to be treated as a prisoner of war until a competent
tribunal has decided otherwise, and may not be tried by a military commission as
currently constituted under the Administration’s regulations.3 The D.C. Circuit Court
of Appeals reversed, however, allowing the military tribunals, which had been
temporarily suspended during the appeal process, to resume against four detainees.
The Department of Defense (DoD) in 2003 released eight “Military Commission
Instructions” (“M.C.I. No. 1-8”)4 to elaborate on the set of procedural rules to govern
military tribunals. Those rules are set forth in Military Commission Order No. 1
(“M.C.O. No. 1”), issued in March, 2002.5 The instructions set forth the elements
of some crimes that may be tried by military commission, establish guidelines for
civilian attorneys, and provide other administrative guidance and procedures for
military commissions. Additionally, Major General John D. Altenburg, Jr. (retired),
1 Rasul v. Bush, 124 S. Ct. 2686 (2004). For a summary of Rasul and related cases, see CRS
Report RS21884, The Supreme Court and Detainees in the War on Terrorism: Summary and
Analysis of Recent Decisions
.
2 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
§1(a), 66 Fed. Reg. 57,833 (Nov. 16, 2001) (hereinafter “M.O.”).
3 Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D.D.C.,2004), rev’d _ F3d _ (D.C. Cir. 2005).
4 Department of Defense (“DoD”) documents related to military commissions are available
online at [http://www.defenselink.mil/news/commissions.html] (last visited Aug. 1, 2005).
5 Reprinted at 41 I.L.M. 725 (2002).

CRS-2
the Appointing Authority for the commissions, has issued several Appointing
Authority Regulations, governing disclosure of communications, interlocutory
motions, and professional responsibility.
President Bush has determined that fifteen of the detainees at the U.S. Naval
Station in Guantánamo Bay are subject to the M.O. and may consequently be charged
and tried before military commissions.6 Six detainees declared eligible in 2003
included two citizens of the U.K. and one Australian citizen.7 After holding
discussions with the British and Australian governments regarding the trial of their
citizens, the Administration agreed that none of those three detainees will be subject
to the death penalty.8 The Administration has agreed to modify some of the rules
with respect to trials of Australian detainees,9 but has agreed to return the U.K.
citizens, including two who had been declared eligible for trial by military
commission, to Great Britain.10 The Administration agreed to return one Australian
citizen, but another, David Hicks has been charged with conspiracy to commit war
crimes; attempted murder by an unprivileged belligerent and aiding the enemy.11 One
citizen from Yemen and one from the Sudan were formally charged with conspiracy
to commit certain violations of the law of war (and other crimes triable by military
commission).12 Salim Ahmed Hamdan of Yemen is accused of providing physical
6 See Press Release, Department of Defense, President Determines Enemy Combatants
S u b j e c t t o H i s M i l i t a r y O r d e r ( J u l y 3 , 2 0 0 3 ) , a v a i l a b l e a t
[http://www.defenselink.mil/releases/2003/nr20030703-0173.html] (last visited Aug. 1,
2005). According to the Defense Department, that determination is effectively “a grant of
[military] jurisdiction over the person.” See John Mintz, 6 Could Be Facing Military
Tribunals
, WASH. POST July 4, 2003, at A1. Subsequently, nine additional detainees were
determined to be eligible. See Press Release, Department of Defense, Presidential Military
Order Applied to Nine more Combatants (July 7, 2004), available at
[http://www.defenselink.mil/releases/2004/nr20040707-0987.html] (last visited Aug. 1,
2005).
7 See John Mintz and Glenn Frankel, 2 Britons, Australian Among Six Facing Trial, WASH.
POST, July 5, 2003, at A13.
8 See Press Releases, Department of Defense, Statements on Detainee Meetings (July 23,
2 0 0 3 ) , a v a i l a b l e a t [ h t t p : / / w w w . d e f e n s e l i n k . m i l / n e w s / A u g 2 0 0 4 /
commissions_releases.html] (last visited Aug. 1, 2005).
9 See Press Release, Department of Defense, U.S. and Australia Announce Agreements on
G u a n t a n a m o D e t a i n e e s ( N o v . 2 5 , 2 0 0 3 ) , a v a i l a b l e a t
[http://www.defenselink.mil/releases/2003/nr20031125-0702.html](last visited Aug. 1,
2005).
10 See Ed Johnson, British Guantanamo Detainees to Be Freed, AP, Jan. 11, 2005.
11 See Press Release, Department of Defense, Guantanamo Detainee Charged (June 10,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040610-0893.html](last
visited Aug. 1, 2005).
12 Press Release, Department of Defense, Two Guantanamo Detainees Charged (Feb. 24,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040224-0363.html](last
visited Aug. 1, 2005). The two defendants are charged with “willfully and knowingly
joining an enterprise of persons who shared a common criminal purpose and conspired with
Osama bin Laden and others to commit the following offenses: attacking civilians; attacking
(continued...)

CRS-3
security for Osama bin Laden and other high ranking Al Qaeda members and was
charged with conspiracy to attack civilians, murder by an unprivileged belligerent
and terrorism.13
The M.O. has been the focus of intense debate both at home and abroad. Critics
argue that the tribunals could violate the rights of the accused under the Constitution
as well as international law, thereby undercutting the legitimacy of any verdicts
rendered by the tribunals. The Administration initially responded that the M.O.
provided only the minimum requirements for a full and fair trial, and that the
Secretary of Defense intended to establish rules prescribing detailed procedural
safeguards for tribunals established pursuant to the M.O. The procedural rules
released in March 2002 were praised as a significant improvement over what might
have been permitted under the language of the M.O., but some have continued to
argue that the enhancements do not go far enough, and that the checks and balances
of a separate rule-making authority and an independent appellate process are
necessary.14 The release of the Military Commission Instructions sparked renewed
debate, especially concerning the restrictions on civilian attorneys,15 resulting in
further modifications to the rules. Critics have noted that the rules do not address the
issue of indefinite detention without charge, as appears to be possible under the
original M.O.,16 or that the Department of Defense may continue to detain persons
who have been cleared by a military commission.17 The Pentagon has stated that its
12 (...continued)
civilian objects; murder by an unprivileged belligerent; destruction of property by an
unprivileged belligerent; and terrorism.” One of the detainees filed for a writ of prohibition
and writ of mandamus with the U.S. Court of Appeals for the Armed Forces (CAAF) in an
effort to halt the military commission proceedings, [http://www.nimj.org/documents/al-
Qosi_.pdf] (last visited Aug. 1, 2005), but the CAAF dismissed the petition without
prejudice in January, 2005.
13 Press Release, Department of Defense, Additional Military Commission Charges Referred
(July 14, 2004), available at [http://www.defenselink.mil/releases/2004/
nr20040714-1030.html](last visited Aug. 1, 2005).
14 See Letter from Timothy H. Edgar, ACLU Legislative Counsel, Military Commission
Order No. 1, March 21, 2002
( Apr i l 16, 2002), available at
[http://www.aclu.org/NationalSecurity/NationalSecurity.cfm?ID=10150&c=111] (last
visited Aug. 1, 2005); American College of Trial Lawyers, Report on Military Commissions
for the Trial of Terrorists, March 2003 [hereinafter “ACTL”], available at
[http://www.actl.com/PDFs/MilitaryCommissions.pdf](last visited Aug. 1, 2005).
15 The president of the National Association of Criminal Defense Lawyers (NACDL)
announced that NACDL “cannot advise its members to act as civilian counsel” because it
deems the rules too restrictive to allow for zealous and professional representation on their
part. See Lawrence Goldman, Guantanamo: Little Hope for Zealous Advocacy, NACDL
CHAMPION, July 2003, at 4, available at [http://www.nacdl.org] (last visited Aug. 14,
2003).
16 The Administration has not explicitly used this authority; instead, it says the prisoners are
being held as “enemy combatants” pursuant to the law of war.
17 See Bruce Zagaris, U.S. Defense Department Issues Order on Military Commissions, 18
No. 5 INT’L ENFORCEMENT L. REP 215 (2002) (citing comments by DoD chief counsel
(continued...)

CRS-4
Inspector General (IG) looked into allegations, made by military lawyers assigned as
prosecutors to the military commissions, that the proceedings are rigged to obtain
convictions, but the IG did not substantiate the charges.18
Military Commissions are courts usually set up by military commanders in the
field to try persons accused of certain offenses during war.19 They are distinct from
military courts-martial, which are panels set up to try U.S. service members (and
during declared wars, civilians accompanying the armed forces) under procedures
prescribed by Congress in the Uniform Code of Military Justice (UCMJ).20 U.S.
service members charged with a war crime are normally tried before courts-martial,
but may also be tried by military commission or in federal court, depending on the
nature of the crime charged.21 All three options are also available to try certain other
persons for war crimes. Federal and state criminal statutes and courts are available
to prosecute specific criminal acts related to terrorism that may or may not be triable
by military commission.
Military commissions trying enemy belligerents for war crimes directly apply
the international law of war, without recourse to domestic criminal statutes, unless
such statutes are declaratory of international law.22 Historically, military
commissions have applied the same set of procedural rules that applied in courts-
martial.23 Some critics of the current plan to use military commissions believe the
rules are modeled more closely after the military commissions held during World
War II than today’s courts-martial.24
M.C.O. No. 1 sets forth procedural rules for the establishment and operation of
military commissions convened pursuant to the November 13, 2001, M.O. It
addresses the jurisdiction and structure of the commissions, prescribes trial
procedures, including standards for admissibility of evidence and procedural
17 (...continued)
William J. Haynes II to a New York Times reporter).
18 See Neil A. Lewis, Two Prosecutors Faulted Trials For Detainees, NY TIMES, August 1,
2005, at A1.
19 See CRS Report RL31191, Terrorism and the Law of War: Trying Terrorists as War
Criminals before Military Commissions
(providing a general background of U.S. history of
military commissions).
20 10 U.S.C. § 801 et seq.
21 See 10 U.S.C. § 818; 18 U.S.C. §2441.
22 See U.S. Army Field Manual (FM) 27-10, The Law of Land Warfare, section 505(e)
[hereinafter “FM 27-10”].
23 See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 841-42 (2d ed. 1920)(noting
that “in the absence of any statute or regulation,” the same principles and procedures
commonly govern, though possibly more “liberally construed and applied”); David Glazier,
Note, Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military
Commission
, 89 VA. L. REV. 2005 (2003).
24 See Kevin J. Barry, Military Commissions: American Justice on Trial, FED LAW., July
2003, at 24.

CRS-5
safeguards for the accused, and establishes a review process. It contains various
mechanisms for safeguarding sensitive government information. M.C.O. No. 3,
“Special Administrative Measures for Certain Communications Subject to
Monitoring,” establishes procedures for authorizing and controlling the monitoring
of communications between detainees and their defense counsel for security or
intelligence-gathering purposes. M.C.O. No. 2 and 4 designate appointing officials.
M.C.I. No. 1 provides guidance for interpretation of the instructions as well as
for issuing new instructions. It states that the eight M.C.I. apply to all DoD personnel
as well as prosecuting attorneys assigned by the Justice Department and all civilian
attorneys who have been qualified as members of the pool. Failure on the part of any
of these participants to comply with any instructions or other regulations “may be
subject to the appropriate action by the Appointing Authority, the General Counsel
of the Department of Defense, or the Presiding Officer of a military commission.”25
“Appropriate action” is not further defined, nor is any statutory authority cited for the
power.26 M.C.I. No. 1 also reiterates that none of the instructions is to be construed
as creating any enforceable right or privilege.
Jurisdiction
The President’s M.O. has been criticized as overly broad in its assertion of
jurisdiction, because it could be interpreted to cover non-citizens who have no
connection with Al Qaeda or the terrorist attacks of September 11, 2001. It has been
argued that the constitutional and statutory authority of the President to establish
military tribunals does not extend any further than Congress’ authorization to use
armed force in response to the attacks.27 Under a literal interpretation of the M.O.,
however, the President may designate as subject to the order any non-citizen he
believes has ever engaged in any activity related to international terrorism, no matter
when or where these acts took place. A person subject to the M.O. may be detained
and possibly tried by military tribunal for violations of the law of war and “other
applicable law.”28
M.C.O. No. 1 does not explicitly limit its coverage to the scope of the
authorization of force, but it clarifies somewhat the ambiguity with respect to the
offenses covered. M.C.O. No. 1 establishes that commissions may be convened to
try aliens who are designated by the President as subject to the M.O., whether
25 M.C.I. No. 1 at § 4.C.
26 M.C.I. No. 1 lists 10 U.S.C. § 898 as a reference. That law, Article 98, UCMJ,
Noncompliance with procedural rules, provides:
Any person subject to this chapter who -
(1) is responsible for unnecessary delay in the disposition of any case of a person accused
of an offense under this chapter; or
(2) knowingly and intentionally fails to enforce or comply with any provision of this
chapter regulating the proceedings before, during, or after trial of an accused;
shall be punished as a court-martial may direct
27 P.L. 107-40.
28 M.O. § 1(e) (finding such tribunals necessary to protect the United States and for effective
conduct of military operations).

CRS-6
captured overseas or on U.S. territory, for violations of the law of war and “all other
offenses triable by military commissions.” While this language is somewhat
narrower than “other applicable law,” it remains vague. However, the statutory
language recognizing the jurisdiction of military commissions is similarly vague,
such that the M.C.O. does not appear on its face to exceed the statute with respect to
jurisdiction over offenses. It does not resolve the issue of whether the President may,
consistent with the Constitution, direct that criminal statutes defined by Congress to
be dealt with in federal court be redefined as “war crimes” to be tried by the military.
By statute, military tribunals may be used to try “offenders or offenses
designated by statute or the law of war.”29 There are only two statutory offenses for
which convening a military commission is explicitly recognized: aiding the enemy
and spying (in time of war).30 It appears that “offenses designated by the law of war”
are not necessarily synonymous with “offenses against the law of war.” Military
tribunals may also be used to try civilians in occupied territory for ordinary crimes.31
During a war, they may also be used to try civilians for committing belligerent acts,
even those for which lawful belligerents would be entitled to immunity under the law
of war, but only where martial law or military government may legally be exercised
or on the battlefield,32 where civilian courts are closed.33 Such acts are not necessarily
offenses against the law of war (that is, they do not amount to an international war
crime), but are merely unprivileged under it, although courts and commentators have
tended to use the terms interchangeably.
Some argue that civilians, including unprivileged combatants unaffiliated with
a state (or other entity with “international personality” necessary for hostilities to
amount to an “armed conflict”), are not directly subject to the international law of
29 10 U.S.C. § 821.
30 10 U.S.C. §§ 904 and 906, respectively. The circumstances under which civilians accused
of aiding the enemy may be tried by military tribunal have not been decided, but a court
interpreting the article may limit its application to conduct committed in territory under
martial law or military government, within a zone of military operations or area of invasion,
or within areas subject to military jurisdiction. See FM 27-10, supra note 22, at
para. 79(b)(noting that treason and espionage laws are available for incidents occurring
outside of these areas, but are triable in civil courts). Spying is not technically a violation
of the law of war, however, but violates domestic law and traditionally may be tried by
military commission. See id. at para. 77 (explaining that spies are not punished as “violators
of the law of war, but to render that method of obtaining information as dangerous, difficult,
and ineffective as possible”).
31 See, e.g., United States v. Schultz, 4 C.M.R. 104, 114 (1952)(listing as crimes punishable
under the law of war, in occupied territory as murder, manslaughter, robbery, rape, larceny,
arson, maiming, assaults, burglary, and forgery).
32 See WINTHROP, supra note 23, at 836.
33 See id. (citing Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)). Winthrop notes that the
limitations as to place, time, and subjects were not always strictly followed, mentioning a
Civil War case in which seven persons who had conspired to seize a U.S. merchant vessel
at Panama were captured and transported to San Francisco for trial by military commission.
Id. at 837 (citing the pre-Milligan case of T.E. Hogg).

CRS-7
war and thus may not be prosecuted for violating it.34 They may, however, be
prosecuted for most belligerent acts under ordinary domestic law, irrespective of
whether such an act would violate the international law of war if committed by a
soldier. Under international law, those offenders who are entitled to prisoner of war
(POW) status under the Third Geneva Convention [“GPW”] are entitled to be tried
by court-martial and may not be tried by a military commission offering fewer
safeguards than a general court-martial, even if those prisoners are charged with war
crimes.35
Presumably, “offenses triable by military commission” would not include acts
triable by military commissions only in the context of a military occupation or
martial law.36 On the other hand, the language could be interpreted to reserve to the
military the discretion of determining what crimes may be tried. The Supreme Court
has stated that charges of violations of the law of war tried before military
commissions need not be as exact as those brought before regular courts.37 The
Administration appears to take the view that the executive branch may determine
which acts violate the law of war and may be tried by military commission.38
According to this view, a military tribunal may need only to determine the existence
of some nexus between the offense and the military to establish its jurisdiction.
Subject-Matter Jurisdiction. M.C.I. No. 2, Crimes and Elements for Trials
by Military Commission, details some of the crimes that might be subject to the
34 See Leila Nadya Sadat, Terrorism and the Rule of Law, 3 WASH. U. GLOBAL STUD. L.
REV. 135 (2004)(arguing that no armed conflict exists with respect to terrorists, making the
law of war inapplicable to them).
35 The Geneva Convention Relative to the Treatment of Prisoners of War [hereinafter
“GPW”] art. 102 states:
A prisoner of war can be validly sentenced only if the sentence has been pronounced by
the same courts according to the same procedure as in the case of members of the armed
forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter
have been observed.
6 U.S.T. 3317. The Supreme Court finding to the contrary in In re Yamashita, 327 U.S. 1
(1946), is likely superceded by the 1949 Geneva Convention. For more information about
the treatment of prisoners of war, see CRS Report RL31367, Treatment of “Battlefield
Detainees” in the War on Terrorism
.
36 See NATIONAL INSTITUTE OF MILITARY JUSTICE, ANNOTATED GUIDE: PROCEDURES FOR
TRIALS BU MILITARY COMMISSIONS OF CERTAIN NON-UNITED STATES CITIZENS IN THE WAR
AGAINST TERRORISM 10-11 (hereinafter “NIMJ”)(noting that civilians in occupied Germany
after World War II were sometimes tried by military commission for ordinary crimes
unrelated to the laws of war). Military trials of civilians for crimes unrelated to the law of
war on U.S. territory under martial law are permissible only when the courts are not
functioning. See Duncan v. Kahanamoku, 327 U.S. 304 (1945).
37 327 U.S. at 17 (“Obviously charges of violations of the law of war triable before a military
tribunal need not be stated with the precision of a common law indictment.”).
38 See Philip A. Gagner, The Bush Administration’s Claim That Even Citizens Can Be
Brought Before Military Tribunals, and Why it Should Never Be Put into Practice
, available
at
[http://writ.news.findlaw.com/commentary/20011226_gagner.html] (last visited Aug. 1,
2005) (describing Administration position set forth in court documents in the case of Dr.
Samuel Mudd).

CRS-8
jurisdiction of the commissions. Unlike the rest of the M.C.I. issued so far, this
instruction was published in draft form by DoD for outside comment. The final
version appears to have incorporated some of the revisions, though not all, suggested
by those who offered comments.39 The revision clarifies that the burden of proof is
on the prosecution, precludes liability for ex post facto crimes,40 adds two new war
crimes, and clearly delineates between war crimes and “other offenses triable by
military commission.”
M.C.I. No. 2 clarifies that the crimes and elements derive from the law of war,
but does not provide any references to international treaties or other sources that
comprise the law of war. The instruction does not purport to be an exhaustive list;
it is intended as an illustration of acts punishable under the law of war41 or triable by
military commissions.42 “Aiding the enemy” and “spying” are included under the
latter group, but are not defined with reference to the statutory authority in UCMJ
articles 104 and 106 (though the language is very similar).43 Terrorism is also
defined without reference to the statutory definition in title 18, U.S. Code.44
39 See NATIONAL INSTITUTE OF MILITARY JUSTICE, MILITARY COMMISSION INSTRUCTIONS
SOURCEBOOK 95 (2003) [hereinafter “SOURCEBOOK”]. DoD has not made public an exact
account of who provided comments to the instruction, but some of them are published in the
Sourcebook.
40 See M.C.I. No. 2 § 3(A) (“No offense is cognizable in a trial by military commission if
that offense did not exist prior to the conduct in question.”).
41 Crimes against the law of war listed in M.C.I. No. 2 are: 1) Willful Killing of Protected
Persons; 2) Attacking Civilians; 3) Attacking Civilian Objects; 4) Attacking Protected
Property; 5) Pillaging; 6) Denying Quarter; 7) Taking Hostages; 8) Employing Poison or
Analogous Weapons; 9) Using Protected Persons as Shields; 10) Using Protected Property
as Shields; 1) Torture; 2) Causing Serious Injury; 13) Mutilation or Maiming; 14) Use of
Treachery or Perfidy; 15) Improper Use of Flag of Truce; 16) Improper Use of Protective
Emblems; 17) Degrading Treatment of a Dead Body; and 18) Rape.
42 Crimes “triable by military commissions” include 1) Hijacking or Hazarding a Vessel or
Aircraft; 2) Terrorism; 3) Murder by an Unprivileged Belligerent; 4) Destruction of Property
by an Unprivileged Belligerent; 5) Aiding the Enemy; 6) Spying; 7) Perjury or False
Testimony; and 8) Obstruction of Justice Related to Military Commissions. Listed as “other
forms of liability and related offenses” are: 1) Aiding or Abetting. 2) Solicitation; 3)
Command/Superior Responsibility - Perpetrating; 4) Command/Superior Responsibility -
Misprision; 5) Accessory After the Fact; 6) Conspiracy; and 7) Attempt.
43 Ordinarily, the charge of “aiding the enemy” would require the accused have allegiance
to the party whose enemy he has aided. DoD added a comment to this charge explaining
that the wrongfulness requirement may necessitate that “in the case of a lawful belligerent,
the accused owe allegiance or some duty to the United States or an ally or coalition
partner...” such as “citizenship, resident alien status, or a contractual relationship with [any
of these countries].” M.C.I. No.2 §6(A)(5)(b)(3). It is unclear what is meant by limiting the
requirement to “a lawful belligerent.” It could be read to make those persons considered the
“enemy” also subject to trial for “aiding the enemy,”as is the case with Australian detainee
David Hicks. See United States v. Hicks, Charge Sheet, available at
[http://www.defenselink.mil/news/Jun2004/d20040610cs.pdf](last visited Aug. 1, 2005).
44 18 U.S.C. § 2331 et seq. defines and punishes terrorism, providing exclusive jurisdiction
(continued...)

CRS-9
It appears that “offenses triable by military commissions” in both the M.O. and
M.C.O. No. 1 could cover ordinary belligerent acts carried out by unlawful
combatants, regardless of whether they are technically war crimes. The draft version
of M.C.I. No. 2 made explicit that
Even an attack against a military objective that normally would be permitted
under the law of armed conflict could serve as the basis for th[e] offense [of
terrorism] if the attack itself constituted an unlawful belligerency (that is, if the
attack was committed by an accused who did not enjoy combatant immunity).
Thus, under the draft language, it appeared that a Taliban fighter who attacked a U.S.
or coalition soldier, or perhaps even a soldier of the Northern Alliance prior to the
arrival of U.S. forces, for example, could be charged with “terrorism” and tried by
a military tribunal.45
However, the final version of M.C.I. No.2 substituted the following language:
The requirement that the conduct be wrongful for this crime necessitates that the
conduct establishing the offense not constitute an attack against a lawful military
objective undertaken by military forces of a State in the exercise of their official
duties.
The change appears to eliminate the possibility that Taliban fighters could be charged
with “terrorism” in connection with combat activities; however, such a fighter could
still be charged with murder or destruction of property “by an unprivileged
belligerent”46 for participating in combat, as long as the commission finds that the
accused “did not enjoy combatant immunity,” which, according the instruction, is
enjoyed only by “lawful combatants.”47 “Lawful combatant” is not further defined.
Inasmuch as the President has already declared that all of the detainees incarcerated
at Guantánamo Bay, whether members of the Taliban or members of Al Qaeda, are
unlawful combatants, it appears unlikely that the defense of combat immunity would
be available.48 It is unclear whether other defenses, such as self-defense or duress,
44 (...continued)
to federal courts. See id. at 35 (letter from National Association of Criminal Defense
Lawyers (NACDL) noting that Congress has defined war crimes in 18 U.S.C. § 2441 with
reference to specific treaties).
45 M.C.I. No. 2 § 6(18). One of the elements of the crime of terrorism is that the “accused
did not enjoy combatant immunity or an object of the attack was not a military objective.”
Another element required that “the killing or destruction was an attack or part of an attack
designed to intimidate or coerce a civilian population, to influence the policy of a
government by intimidation or coercion, or to affect the conduct of a government.” The
final version of the M.C.I. omits the reference to “affect[ing] the conduct of a government.”
46 M.C.I. No. 2 § 6(19).
47 Under M.C.I. No. 2, the lack of combatant immunity is considered an element of some of
the crimes rather than a defense, so the prosecutor has the burden of proving its absence.
48 Whether the prisoners at Guantánamo Bay should be considered lawful combatants with
combatant immunity is an issue of some international concern. See generally CRS Report
(continued...)

CRS-10
would be available to the accused. M.C.I. No. 2 states that such defenses may be
available, but that “[i]n the absence of evidence to the contrary, defenses in
individual cases are presumed not to apply.”49
Temporal and Spatial Jurisdiction. The law of war has traditionally
applied within the territorial and temporal boundaries of an armed conflict between
at least two belligerents.50 It has not traditionally been applied to conduct occurring
on the territory of neutral states or on the territory of a belligerent that lies outside the
zone of battle, to conduct that preceded the outbreak of hostilities, or to conduct
during hostilities that do not amount to an armed conflict. With respect to the
international conflict in Afghanistan, in which coalition forces ousted the Taliban
government, it appears relatively clear when and where the law of war would apply.
The war on terrorism, however, does not have clear boundaries in time or space,51 nor
is it entirely clear who the belligerents are. The broad reach of the M.O. to encompass
conduct and persons customarily subject to ordinary criminal law has evoked
criticism that the claimed jurisdiction of the military commissions exceeds the
customary law of armed conflict, which M.C.I. No. 2 purports to restate.52
48 (...continued)
RL31367, Treatment of ‘Battlefield Detainees’ in the War on Terrorism. DoD’s original
draft included the requirement that a lawful combatant be part of the “armed forces of a
legitimate party to an armed conflict.” The Lawyers’ Committee for Human Rights (now
known as Human Rights First or “HRF”) and Human Rights Watch (“HRW”) urged DoD
to revise the definition in line with the Geneva Convention. See SOURCEBOOK, supra note
39, at 50-51 and 59. The revised version leaves ambiguous who might be a “lawful
combatant.”
49 M.C.I. No. 2 § 4(B). The American Civil Liberties Union (ACLU) objected to this
provision in its comments on the DoD draft, remarking that it “not only places the ordinary
burden on the accused to going forward with evidence that establishes affirmative defense,
but it also appears to place an unprecedented burden on the accused to overcome the
presumption that the defenses do not apply.” See SOURCEBOOK, supra note 39, at 69.
50 See WINTHROP, supra note 21, at 773 (the law of war “prescribes the rights and
obligations of belligerents, or ... define[s] the status and relations not only of enemies —
whether or not in arms — but also of persons under military government or martial law and
persons simply resident or being upon the theatre of war, and which authorizes their trial and
punishment when offenders”); id at 836 (military commissions have valid jurisdiction only
in theater of war or territory under martial law or military government).
51 It may be argued that no war has a specific deadline and that all conflicts are in a sense
indefinite. In traditional armed conflicts, however, it has been relatively easy to identify
when hostilities have ended; for example, upon the surrender or annihilation of one party,
an annexation of territory under dispute, an armistice or peace treaty, or when one party to
the conflict unilaterally withdraws its forces. See GERHARD VON GLAHN, LAW AMONG
NATIONS 722-730 (6th ed. 1992).
52 See Human Rights First, Trial Under Military Order, A Guide to the Final Rules for
M i l i t a r y C o m m i s s i o n s ( 2 0 0 4 ) [ h e r e i n a f t e r “ H R F ” ] , a v a i l a b l e a t
[http://www.humanrightsfirst.org/us_law/PDF/detainees/trials_under_order0604.pdf]](last
visited Aug. 1, 2005); Sadat, supra note 34, at 146 (noting possibly advantageous domestic
aspects of treating terrorist attacks as war crimes, but identifying possible pitfalls of creating
a new international legal regime).

CRS-11
A common element among the crimes enumerated in M.C.I. No.2 is that the
conduct “took place in the context of and was associated with armed conflict.” The
instruction explains that the phrase requires a “nexus between the conduct and armed
hostilities,”53 which has traditionally been a necessary element of any war crime.
However, the definition of “armed hostilities” is broader than the customary
definition of war or “armed conflict.” “Armed hostilities” need not be a declared
war or “ongoing mutual hostilities.”54 Instead, any hostile act or attempted hostile
act might have sufficient nexus if its severity rises to the level of an “armed attack,”
or if it is intended to contribute to such acts. Some commentators have argued that
the expansion of “armed conflict” beyond its customary bounds improperly expands
the jurisdiction of military commissions beyond those that by statute or under the law
of war are triable by military commissions.55
The definition for “Enemy” provided in M.C.I. No. 2 raises similar issues.
According to § 5(B), “Enemy” includes
any entity with which the United States or allied forces may be engaged in armed
conflicts or which is preparing to attack the United States. It is not limited to
foreign nations, or foreign military organizations or members thereof. “Enemy”
specifically includes any organization of terrorists with international reach.
Some observers argue that this impermissibly subjects suspected international
criminals to the jurisdiction of military commissions in circumstances in which the
law of armed conflict has never applied.56 The distinction between a “war crime,”
traditionally subject to the jurisdiction of military commissions, and a common
crime, traditionally the province of criminal courts, may prove to be a matter of some
contention during some of the proceedings.57
Composition and Powers
Under M.C.O. No. 1, the military commissions will consist of a panel of three
to seven military officers as well as one or more alternate members who have been
“determined to be competent to perform the duties involved” by the Secretary of
Defense or his designee.58 These may include reserve personnel on active duty,
National Guard personnel in active federal service, and retired personnel recalled to
active duty. They may also include persons temporarily commissioned by the
53 M.C.I. No. 2 § 5(C).
54 Id.
55 See SOURCEBOOK, supra note 39, at 38-39 (NACDL comments); id. at 51 (Human Rights
Watch (HRW) comments); id. at 59-60 (LCHR). However, M.C.I. No. 9 lists among
possible “material errors of law” for which the Reviewing Panel might return a finding for
further procedures, “a conviction of a charge that fails to state an offense that by statute or
the law of war may be tried by military commission. ...” M.C.I. No. 9 § 4(C)(2)(b).
56 See id. at 38 (NACDL comments).
57 See id. at 98 (commentary of Eugene R. Fidell and Michael F. Noone).
58 M.C.O. No. 1 § 4(A)(3).

CRS-12
President to serve as officers in the armed services during a national emergency.59
The presiding officer must be a judge advocate in any of the U.S. armed forces, but
need not be a military judge.60
The presiding officer has the authority to decide evidentiary matters and
interlocutory motions, or to refer them to the commission or certify them to
Appointing Authority for decision. The presiding officer has the power to close any
portion of the proceedings in accordance with M.C.O. No. 1, and “to act upon any
contempt or breach of Commission rules and procedures,” including disciplining any
individual who violates any “laws, rules, regulations, or other orders” applicable to
the commission, as the presiding officer sees fit. Presumably this power includes not
only military and civilian attorneys but also any witnesses who have been summoned
under order of the Secretary of Defense pursuant to M.C.O. No. 1 § 5(A)(5).61 The
UCMJ authorizes military commissions to punish contempt with a fine of $100,
confinement for up to 30 days, or both.62 Under the UCMJ, a duly subpoenaed
witness who is not subject to the UCMJ and who refuses to appear before a military
commission may be prosecuted in federal court.63 To the extent that M.C.O. No. 1
would allow disciplinary measures against civilian witnesses who refuse to testify or
produce other evidence as ordered by the commission, M.C.O. No. 1 would appear
to be inconsistent with the UCMJ.
One of the perceived shortcomings of the M.O. has to do with the problem of
command influence over commission personnel. M.C.O. No. 1 provides for a “full
and fair trial,” but contains few specific safeguards that appear to address the issue
of impartiality. The President appears to have complete control over the proceedings.
He or his designee decide which charges to press, select the members of the panel,
the prosecution and the defense counsel, select the members of the review panel, and
approve and implement the final outcome. The procedural rules are entirely under
the control of the President or his designees, who write them, interpret them, enforce
them, and may amend them at any time. All commission personnel other than the
commission members themselves are under the supervision of the Secretary of
59 See 10 U.S.C. § 603, listed as reference (e) of M.C.O. No. 1.
60 M.C.O. No. 1 § 4(A)(4). See NIMJ, supra note 36, at 17 (commenting that the lack of a
military judge to preside over the proceedings is a significant departure from the UCMJ).
A judge advocate is a military officer of the Judge Advocate General’s Corps of the Army
or Navy (a military lawyer). A military judge is a judge advocate who is certified as
qualified by the JAG Corps of his or her service to serve in a role similar to civilian judges.
61 See M.C.O. No. 1 § 3(C) (asserting jurisdiction over participants in commission
proceedings “as necessary to preserve the integrity and order of the proceedings”).
62 See 10 U.S.C. § 848.
63 See 10 U.S.C. § 847. It is unclear how witnesses are “duly subpoenaed;” 10 U.S.C. § 846
empowers the president of the court-martial to compel witnesses to appear and testify and
to compel production of evidence, but this statutory authority does not explicitly apply to
military commissions. The subpoena power extends to “any part of the United States, or the
Territories, Commonwealth and possessions.”

CRS-13
Defense, directly or through the DoD General Counsel.64 The Secretary of Defense
is the direct supervisor of Review Panel members.65 Originally, both the Chief
Prosecutor and the Chief Defense Counsel were to report ultimately to the DoD
General Counsel, which led some critics to warn that defense counsel were
insufficiently independent from the prosecution.66 However, DoD amended the
instructions so that the Chief Prosecutor now reports to the Legal Advisor to the
Appointing Authority.
The following sections summarize provisions of the procedural rules meant to
provide appropriate procedural safeguards.
Procedures Accorded the Accused
The military commissions established pursuant to M.C.O. No. 1 will have
procedural safeguards similar to many of those that apply in general courts-martial,
but the M.C.O. does not specifically adopt any procedures from the UCMJ, even
those that explicitly apply to military commissions.67 The M.C.O. provides that only
the procedures it prescribes or any supplemental regulations that may be established
pursuant to the M.O., and no others shall govern the trials,68 perhaps precluding
commissions from looking to the UCMJ or other law to fill in any gaps. The M.C.O.
does not explicitly recognize that accused persons have rights under the law. The
procedures that are accorded to the accused do not give rise to any enforceable right,
benefit or privilege, and are not to be construed as requirements of the U.S.
Constitution.69 The accused has no opportunity to challenge the interpretation of the
rules or seek redress in case of a breach.70
The procedural safeguards are for the most part listed in section 5. The accused
is entitled to be informed of the charges sufficiently in advance of trial to prepare a
64 M.C.I. No. 6.
65 Id. § 3(A)(7).
66 Cf United States v. Wiesen, 56 M.J. 172 (2001), aff’d on reconsideration, 57 M.J. 48
(2002)(noting that command relationships among participants in court-martial proceeding
may give rise to “implied bias”).
67 See 10 U.S.C. § 836 (providing military commission rules “may not be contrary to or
inconsistent with [the UCMJ]”). But see In re Yamashita, 327 U.S. 1, 19-20 (1946)(finding
Congress did not intend the language “military commission” in Article 38 of the Articles of
War, the precursor to UCMJ Art. 36, to mean military commissions trying enemy
combatants). On the other hand, President Bush explicitly invoked UCMJ art. 36 as
statutory authority for the M.O., and included a finding, “consistent with section 836 of title
10, United States Code, that it is not practicable to apply in military commissions under this
order the principles of law and the rules of evidence generally recognized in the trial of
criminal cases in the United States district courts.” M.O. § 1(g).
68 M.C.O. No. 1 § 1.
69 Id. § 10.
70 Id.; M.C.I. No. 1 § 6 (Non-Creation of Right).

CRS-14
defense,71 shall be presumed innocent until determined to be guilty beyond a
reasonable doubt by two thirds of the commission members,72 shall have the right not
to testify at trial unless he so chooses, shall have the opportunity to present evidence
and cross-examine witnesses for the prosecution, and may be present at every stage
of proceeding unless it is closed for security concerns or other reasons.73 The
presumption of innocence and the right against self-incrimination will result in an
entered plea of “Not Guilty” if the accused refuses to enter a plea or enters a “Guilty”
plea that is determined to be involuntary or ill informed.74
Open Hearing. The trials themselves will be conducted openly except to the
extent the Appointing Authority or presiding officer closes proceedings to protect
classified or classifiable information or information protected by law from
unauthorized disclosure, the physical safety of participants, intelligence or law
enforcement sources and methods, other national security interests, or “for any other
reason necessary for the conduct of a full and fair trial.”75 DoD invited members of
the press to apply for permission to attend the trials,76 although it initially informed
Human Rights Watch and other groups that logistical issues would likely preclude
their attendance.77 However, at the discretion of the Appointing Authority, “open
proceedings” need not necessarily be open to the public and the press.78 Proceedings
may be closed to the accused or the accused’s civilian attorney, but not to detailed
defense counsel. Furthermore, counsel for either side must obtain permission from
the Appointing Authority or the DoD General Counsel in order to make a statement
to the press.79
Because the public, and not just the accused, has a constitutionally protected
interest in public trials, the extent to which trials by military commission are open to
the press and public may be subject to challenge by media representatives.80 The
71 M.C.O. No. 1 § 5(A).
72 Id. §§ 5(B-C); 6(F).
73 Id. §§ 4(A)(5)(a); 5(K); 6B(3).
74 Id. §§ 5(B) and 6(B).
75 M.C.O. No. 1 § 6(D)(5).
76 See DoD Press Release, DoD Announces Media Coverage Opportunities for Military
Commissions (Feb. 11, 2004), available at [http://www.defenselink.mil/advisories/2004/
pa20040211-0205.html] (last visited Aug. 1, 2005).
77 See Toni Locy, Human Rights Groups Denied Seats at Tribunals, USA TODAY, Feb. 24,
2004, at A3.
78 Id. at § 6(B)(3)(“Open proceedings may include, at the discretion of the Appointing
Authority, attendance by the public and accredited press, and public release of transcripts
at the appropriate time.”) In courts-martial, “public” is defined to include members of the
military as well as civilian communities. R.C.M. 806.
79 M.C.I. No. 3 § 5(C) (Prosecutor’s Office); M.C.I. No. 4 § 5(C) (Defense counsel,
including members of civilian defense counsel pool).
80 See Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 602 (1982)(newspaper had
(continued...)

CRS-15
First Amendment right of public access extends to trials by court-martial,81 but is not
absolute. Trials may be closed only where the following test is met: the party seeking
closure demonstrates an overriding interest that is likely to be prejudiced; the closure
is narrowly tailored to protect that interest; the trial court has considered reasonable
alternatives to closure; and the trial court makes adequate findings to support the
closure.82 Because procedures established under M.C.O. No. 1 appear to allow the
exclusion of the press and public based on the discretion of the Appointing Authority
without any consideration of the above requirements with respect to the specific
exigencies of the case at trial, the procedures may implicate the First Amendment
rights of the press and public.
Although the First Amendment bars government interference with the free press,
it does not impose on the government a duty “to accord the press special access to
information not shared by members of the public generally.”83 The reporters’ right
to gather information does not include an absolute right to gain access to areas not
open to the public. Thus, if the military commissions were to sit in areas off-limits
to the public for other valid reasons, media access may be restricted for reasons of
operational necessity.84 Access of the press to the proceedings of military
commissions may be an issue of contention for the courts ultimately to decide, even
if those tried by military commission are determined to lack the protection of the
Sixth Amendment right to an open trial or means to challenge the trial.85
Right to Counsel. Once charges are referred,86 the defendant will have
military defense counsel assigned free of cost, but may request another JAG officer,
who will be provided as a replacement if available in accordance with any applicable
instructions or supplementary regulations that might later be issued.87 The accused
80 (...continued)
standing to challenge court order closing portions of criminal trial).
81 United States v. Hershey, 20 M.J. 433 (C.M.A.1985), cert. denied, 474 U.S. 1062 (1986);
United States v. Grunden, 2 M.J. 116 (C.M.A.1977). The press has standing to challenge
closure of military justice proceedings. ABC, Inc. v. Powell, 47 M.J. 363, 365 (1997).
82 See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984).
83 Pell v. Procunier, 417 U.S. 817, 822-24 (1974).
84 See Juan R. Torruella, On the Slippery Slopes of Afghanistan: Military Commissions and
the Exercise of Presidential Power
, 4 U. PA. J. CONST. L. 648, 718 (2002) (noting that
proceedings, if held at the Guantánamo Bay Naval Station, may be de facto closed due to
the physical isolation of the facility).
85 Cf. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir.2002), (finding closure of
immigration hearings based on relation to events of Sept. 11 unconstitutional infringement
on the First Amendment right to free press). But see North Jersey Media Group, Inc. v.
Ashcroft, 308 F.3d 198 (3d Cir. 2002) cert denied 538 U.S. 1056 (2003)(no presumption of
openness for immigration hearings).
86 In practice, some of the detainees have been assigned counsel upon their designation as
subject to the President’s M.O.
87 M.C.O. No. 1 § 4(C). M.C.I. No. 4 § 3(D) lists criteria for the “availability” of selected
(continued...)

CRS-16
does not have the right to refuse counsel in favor of self-representation.88 M.C.I.
No. 4 requires detailed defense counsel to “defend the accused zealously within the
bounds of the law ... notwithstanding any intention expressed by the accused to
represent himself.”89
The accused may also hire a civilian attorney at his own expense, but must be
represented by assigned defense counsel at all relevant times, even if he retains the
services of a civilian attorney. Civilian attorneys may apply to qualify as members
of the pool of eligible attorneys, or may seek to qualify ad hoc at the request of an
accused. Some critics argue the rules provide disincentives for the participation of
civilian lawyers.90 Civilian attorneys must agree that the military commission
representation will be his or her primary duty, and are not permitted to bring any
assistants, such as co-counsel or paralegal support personnel, with them to the
defense team. Originally, all defense and case preparation was to be done on site,
and civilian attorneys were not to share documents or discuss the case with anyone
but the detailed counsel or the defendant. These restrictions, read literally, might
have prevented civilian defense counsel from conducting witness interviews or
seeking advice from experts in humanitarian law, for example.91 However, the
Pentagon later released a new version of M.C.I. No. 5 that loosened the restrictions
to allow communications with “individuals with particularized knowledge that may
assist in discovering relevant evidence.”92
Civilian attorneys must meet strict qualifications to be admitted before a military
commission. The civilian attorney must be a U.S. citizen (except for those
representing Australian detainees93) with at least a SECRET clearance,94 who is
admitted to the bar of any state or territory. Furthermore, the civilian attorney may
not have any disciplinary record, and must agree in writing to comply with all rules
87 (...continued)
detailed counsel.
88 But see Faretta v. California , 422 U.S. 806 (1975) (Const. Amend. VI guarantees the right
to self-representation).
89 M.C.I. No. 4 § 3(C).
90 See HRF, supra note 52, at 2-3; Vanessa Blum, Tribunals Put Defense Bar in Bind, LEGAL
TIMES, July 14, 2003, at 1 (reporting that only 10 civilian attorneys had applied to join the
pool of civilian defense lawyers).
91 See SOURCEBOOK, supra note 39, at 136-37.
92 M.C.I. No. 5, Annex B, “Affidavit and Agreement by Civilian Defense Counsel,” at §
II(E)(1). The communications are subject to restrictions on classified or “protected”
information. Id.
93 See DoD Press Release, supra note 11.
94 Originally, civilian attorneys were required to pay the costs associated with obtaining a
clearance. M.C.I. No. 5 §3(A)(2)(d)(ii). DoD has waived the administrative costs for
processing applications for TOP SECRET clearances in cases that would require the higher
level of security clearance. See DoD Press Release No. 084-04 , New Military Commission
Orders, Annex Issued (Feb. 6, 2004), available at [http://www.defenselink.mil/
releases/2004/nr20040206-0331.html] (Last visited Aug. 1, 2005).

CRS-17
of court.95 The civilian attorney is not guaranteed access to closed hearings or
information deemed protected under the rules, which may or may not include
classified information.96
The requirement that civilian counsel must agree that communications with the
client may be monitored has been modified to require prior notification and to permit
the attorney to notify the client when monitoring is to occur.97 Although the
government will not be permitted to use information against the accused at trial,
some argue the absence of the normal attorney-client privilege could impede
communications between them, possibly decreasing the effectiveness of counsel.
Civilian attorneys are bound to inform the military counsel if they learn of
information about a pending crime that could lead to “death, substantial bodily harm,
or a significant impairment of national security.”98 M.C.I. No. 5 provides no criteria
to assist defense counsel in identifying what might constitute a “significant
impairment of national security.”
All defense counsel are under the overall supervision of the Office of the Chief
Defense Counsel, which is entrusted with the proper management of personnel and
resources the duty to preclude conflicts of interest.99 The M.C.O. further provides
that “in no circumstance shall accommodation of counsel be allowed to delay
proceedings unreasonably.”100 The Appointing Authority may revoke any attorney’s
eligibility to appear before any commission.101
Some attorneys’ groups have voiced opposition to the restrictions and
requirements placed on civilian defense counsel, arguing the rules would not allow
a defense attorney ethically to represent any client. The board of directors for the
National Association of Criminal Defense Lawyers issued an ethics statement saying
that it is unethical for a lawyer to represent a client before a military tribunal under
95 M.C.O. No. 1 § 4(C)(3)(b).
96 Id.; see Edgar, supra note 14 (emphasizing that national security may be invoked to close
portions of a trial irrespective of whether classified information is involved).
97 See M.C.O. No. 3, “Special Administrative Measures for Certain Communications Subject
to Monitoring.” The required affidavit and agreement annexed to M.C.I. No. 3 was
modified to eliminate the following language:
I understand that my communications with my client, even if traditionally covered by the
attorney-client privilege, may be subject to monitoring or review by government officials,
using any available means, for security and intelligence purposes. I understand that any
such monitoring will only take place in limited circumstances when approved by proper
authority, and that any evidence or information derived from such communications will
not be used in proceedings against the Accused who made or received the relevant
communication.
98 M.C.I. No. 5, Annex B § II(J).
99 M.C.O. No 1 § 4(C)(1); see Torruella, supra note 84, at 719 (noting that the civilian
criminal defense system has no equivalent to this system, in which the accused has no
apparent choice over the supervision of the defense efforts).
100 M.C.O. No 1 § 4(A)(5)(c).
101 Id § 4(A)(5)(b).

CRS-18
the current rules and that lawyers who choose to do so are bound to contest the
unethical conditions.”102 The House of Delegates of the American Bar Association
(ABA) took no position on whether civilian lawyers should participate in the
tribunals, but urged the Pentagon to relax some of the rules, especially with respect
to the monitoring of communications between clients and civilian attorneys.103 The
National Institute of Military Justice, while echoing concerns about the commission
rules, has stated that lawyers who participate will be performing an important public
service.104
Discovery. The accused has the right to view evidence the Prosecution intends
to present as well as any exculpatory evidence known, as long as it is not deemed to
be protected under Sec. 6(D)(5).105 In courts-martial, by contrast, the accused has the
right to view any documents in the possession of the Prosecution related to the
charges, and evidence that reasonably tends to negate the guilt of the accused, reduce
the degree of guilt or reduce the punishment.106
The accused may also obtain witnesses and documents “to the extent necessary
and reasonably available as determined by the Presiding Officer” and subject to
secrecy determinations. The Appointing Authority shall make available to the
accused “such investigative or other resources” deemed necessary for a full and fair
trial.107 Access to other detainees who might be able to provide mitigating or
exculpatory testimony may be impeded by the prohibition on defense counsel from
entering into agreements with “other Accused or Defense Counsel that might cause
them or the Accused they represent to incur an obligation of confidentiality with such
other Accused or Defense Counsel or to effect some other impediment to
representation.”108 In other words, communications with potential witnesses would
not be privileged and could be used against the witness at his own trial.
The overriding consideration with regard to whether the accused or defense
counsel (including detailed defense counsel) may gain access to information appears
to be the need for secrecy. The presiding officer may delete specific items from any
information to be made available to the accused or defense counsel, or may direct
102 See NACDL Ethics Advisory Committee Opinion 03-04 (August 2003), available at
[http://www.nacdl.org] (Last visited Aug. 1, 2005); Participation in Secret Military Terror
Trials Unethical, U.S. Lawyers Say,
AP Aug. 2, 2003 (quoting incoming NACDL president
Barry Scheck).
103 See U.S. May Ease Tribunal Rules, NEWSDAY, Aug. 14, 2003, at A18.
104 See NIMJ Statement on Civilian Attorney Participation as Defense Counsel in Military
Commissions, July 13, 2003, available at [http://www.nimj.com/documents/
NIMJ_Civ_Atty_Participation_Statement.pdf] (last visited Aug. 1, 2005).
105 Id § 5(E).
106 See R.C.M. 701(a)(6); NIMJ, supra note 36, at 31-32.
107 M.C.O. No 1 § 5(H). Civilian defense counsel must agree not to submit any claims for
reimbursement from the government for any costs related to the defense. M.C.I. No. 5
Annex B.
108 M.C.I. No. 4 § 5.

CRS-19
that unclassified summaries of protected information be prepared.109 However, no
evidence may be admitted for consideration by the rest of the commission members
unless it has been made available to at least the detailed defense counsel.110
Information that was reviewed by the presiding officer ex parte and in camera but
withheld from the defense over defense objection will be sealed and annexed to the
record of the proceedings for review by the various reviewing authorities.111 Nothing
in the M.C.O. limits the purposes for which the reviewing authorities may use such
material.
Right to Face One’s Accuser. The presiding officer may authorize any
methods appropriate to protect witnesses, including telephone or other electronic
means, closure of all or part of the proceedings and the use of pseudonyms.112 The
commission may consider sworn or unsworn statements, and these apparently may
be read into evidence without meeting the requirements for authentication of
depositions and without regard to the availability of the witness under the UCMJ, as
these provisions expressly apply to military commissions.113 UCMJ articles 49 and
50 could be read to apply to military commissions the same rules against hearsay
used at courts-martial, however, the Supreme Court has declined to apply similar
provisions to military commissions trying enemy combatants.114
109 Id § 6(D)(5)(b). Some observers note that protected information could include
exculpatory evidence as well as incriminating evidence, which could implicate 6th
Amendment rights and rights under the Geneva Convention, if applicable. See HRF, supra
note 52, at 3.
110 Id.
111 Id. § 6(D)(5)(d).
112 Id. § 6(D)(2)(d).
113 See 10 U.S.C. §§ 849 -50. UCMJ art. 49 states:
(d) A duly authenticated deposition taken upon reasonable notice to the other parties, so
far as otherwise admissible under the rules of evidence, may be read in evidence or, in the
case of audiotape, videotape, or similar material, may be played in evidence before any
military court or commission in any case not capital, or in any proceeding before a court
of inquiry or military board, if it appears —
(1) that the witness resides or is beyond the State, Territory, Commonwealth, or District
of Columbia in which the court, commission, or board is ordered to sit, or beyond 100
miles from the place of trial or hearing;
(2) that the witness by reason of death, age, sickness, bodily infirmity, imprisonment,
military necessity, nonamenability to process, or other reasonable cause, is unable or
refuses to appear and testify in person at the place of trial or hearing; or
(3) that the present whereabouts of the witness is unknown.
(e) Subject to subsection (d), testimony by deposition may be presented by the defense in
capital cases.
(f) Subject to subsection (d), a deposition may be read in evidence or, in the case of
audiotape, videotape, or similar material, may be played in evidence in any case in which
the death penalty is authorized but is not mandatory, whenever the convening authority
directs that the case be treated as not capital, and in such a case a sentence of death may
not be adjudged by the court-martial.
114 See In re Yamashita, 327 U.S. 1, 19 (1946) (declining to apply art. 25 of the Articles of
War, which is substantially the same as current UCMJ art. 49, to trial by military
commission of an enemy combatant). The Yamashita Court concluded that Congress
(continued...)

CRS-20
It is the provision for the use of secret evidence and for the exclusion of the
accused from portions of the hearings that the district court found most troubling in
Hamdan.115 The court declared “[i]t is obvious beyond the need for citation that such
a dramatic deviation from the confrontation clause could not be countenanced in any
American court . . .” and found it apparent that “the right to trial ‘in one’s presence’
is established as a matter of international humanitarian and human rights law.”116
Under UCMJ art. 39,117 the accused at a court-martial has the right to be present at
all proceedings other than the deliberation of the members.
Admissibility of Evidence. The standard for the admissibility of evidence
remains as it was stated in the M.O.; evidence is admissible if it is deemed to have
“probative value to a reasonable person.”118 This is a significant departure from the
Military Rules of Evidence (Mil. R. Evid.), which provide that “[a]ll relevant
evidence is admissible, except as otherwise provided by the Constitution of the
United States [and other applicable statutes, regulations and rules]”119 In a court-
martial, relevant evidence may be excluded if its probative value is substantially
outweighed by other factors.120
“Probative value to a reasonable man” is a seemingly lax standard for
application to criminal trials.121 A reasonable person could find plausible sounding
rumors or hearsay to be at least somewhat probative, despite inherent questions of
reliability and fairness that both federal and military rules of evidence are designed
to address. Furthermore, defendants before military commissions do not appear to
have the right to move that evidence be excluded because of its propensity to create
confusion or unfair prejudice, or because it was unlawfully obtained or coerced.
Sentencing. The prosecution must provide in advance to the accused any
evidence to be used for sentencing, unless good cause is shown. The accused may
present evidence and make a statement during sentencing proceedings, however, this
right does not appear to mirror the right to make an unsworn statement that military
defendants may exercise in regular courts-martial.122 Statements made by the accused
during the sentencing phase appear to be subject to cross-examination.
114 (...continued)
intended the procedural safeguards in the Articles of War to apply only to persons “subject
to military law” under article 2. But see id. at 61-72 (Rutledge, J. dissenting)(arguing the
plain language of the statute does not support that interpretation).
115 Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 167-68 (D.D.C. 2004).
116 Id. at 168.
117 10 U.S.C.§ 839.
118 M.C.O. No. 1 § 6(D)(1).
119 Mil. R. Evid. 402.
120 Mil. R. Evid. 403.
121 See Torruella, supra note 84, at 715; ACTL, supra note 14, at 11.
122 See NIMJ, supra note 36, at 37 (citing United States v. Rosato, 32 M.J. 93, 96 (C.M.A.
1991)).

CRS-21
Possible penalties include execution,123 imprisonment for life or any lesser term,
payment of a fine or restitution (which may be enforced by confiscation of property
subject to the rights of third parties), or “such other lawful punishment or condition
of punishment” determined to be proper. Detention associated with the accused’s
status as an “enemy combatant” will not count toward serving any sentence
imposed.124 If the sentence includes confinement, it is unclear whether or how the
conditions of imprisonment will differ from that of detention as an “enemy
combatant.” Sentences agreed in plea agreements are binding on the commission,
unlike regular courts-martial, in which the agreement is treated as the maximum
sentence. Similar to the practice in military courts-martial, the death penalty may
only be imposed upon a unanimous vote of the Commission.125 In courts-martial,
however, both conviction for any crime punishable by death and any death sentence
must be by unanimous vote.126 None of the rules specify which offenses might be
eligible for the death penalty, but the Pentagon announced the death penalty will not
be sought in the cases brought so far.
Post-Trial Procedure
One criticism leveled at the language of the M.O. was that it does not include
an opportunity for the accused to appeal a conviction, and appears to bar habeas
corpus relief. Another was that it appears to allow the Secretary of Defense (or the
President) the discretion to change the verdict, and does not protect persons from
double jeopardy.127 M.C.O. No.1 addresses these issues in part.
Review and Appeal. The rules provide for the administrative review of the
trial record by the Appointing Authority, who forwards the record, if found
satisfactory, to a review panel consisting of three military officers, one of whom must
have experience as a judge. The Bush Administration has announced its intent to
commission four individuals to active duty to serve on the Military Commission
Review Panels.128 They are Griffin Bell, a former U.S. attorney general and judge of
the U.S. Court of Appeals for the 5th Circuit; Edward Biester, a former Member of
the U.S. House of Representatives and current judge of the Court of Common Pleas
123 The method of execution used by the Army to carry out a death sentence by military
commission is lethal injection. See U.S. Army Correctional System: Procedures for
Military Executions, AR 190-55 (1999). It is unclear whether DoD will follow these
regulations with respect to sentences issued by these military commissions, but it appears
unlikely that any such sentences would be carried out at Ft. Leavenworth, in accordance
with AR 190-55.
124 M.C.I. No. 7 § 3(A).
125 M.C.O. No. 1 § 6(F).
126 10 U.S.C. § 851.
127 See Laurence H. Tribe, Trial by Fury, THE NEW REPUBLIC, Dec. 10, 2001.
128 See Press Release, Military Commission Review Panel Members to be Designated and
I n s t r u c t i o n I s s u e d ( D e c . 3 0 , 2 0 0 3 ) ,
a v a i l a b l e a t
[http://www.defenselink.mil/releases/2003/nr20031230-0822.html] (last visited Aug. 1,
2005). 10 U.S.C. § 603 permits the President, during war or national emergency, to appoint
any qualified person as a military officer in the grade of major general or below.

CRS-22
of Bucks County, Pennsylvania; the Honorable William T. Coleman Jr., a former
Secretary of Transportation; and Chief Justice Frank Williams of the Rhode Island
Supreme Court.
There is no opportunity for the accused to appeal a conviction in the ordinary
sense. The review panel may, however, at its discretion, review any written
submissions from the prosecution and the defense, who do not appear to have an
opportunity to view or rebut the submission from the opposing party.129 If the review
panel forms a “firm and definite conviction that a material error of law occurred,” it
returns the case to the Appointing Authority for further proceedings. If the review
panel determines that one or more charges should be dismissed, the Appointing
Authority is bound to do so.130 For other cases involving errors, the Appointing
Authority is required to return the case to the military commission. Otherwise, the
case is forwarded to the Secretary of Defense with a written recommendation. (Under
the UCMJ, the trial record of a military commission would be forwarded to the
appropriate JAG first).131
After reviewing the record, the Secretary of Defense may forward the case to the
President or return it for further proceedings for any reason, not explicitly limited to
material errors of law. The M.C.O. does not indicate what “further proceedings” may
entail. If the Secretary of Defense is delegated final approving authority, he can
approve or disapprove the finding, or mitigate or commute the sentence. The rules
do not clarify what happens to a case that has been “disapproved.” It is unclear
whether a disapproved finding is effectively vacated and remanded to the military
commission for a rehearing.
The UCMJ forbids rehearings or appeal by the government of verdicts
amounting to a finding of Not Guilty, and prohibits the invalidation of a verdict or
sentence due to an error of law unless the error materially prejudices the substantial
rights of the accused.132 The M.C.O. does not contain any such explicit prohibitions,
but M.C.I. No. 9 defines “Material Error of Law” to exclude variances from the M.O.
or any of the military orders or instructions promulgated under it that would not have
had a material effect on the outcome of the military commission.133 M.C.I. No. 9
allows the review panel to recommend the disapproval of a finding of Guilty on a
basis other than a material error of law.134 It does not indicate what options the
review panel would have with respect to findings of Not Guilty.
129 The convening authority of a general court-martial is required to consider all matters
presented by the accused. 10 U.S.C. § 860.
130 M.C.I. No. 9 § 4(C).
131 10 U.S.C. § 8037 (listing among duties of Air Force Judge Advocate General to “receive,
revise, and have recorded the proceedings of ... military commissions”); 10 U.S.C. § 3037
(similar duty ascribed to Army Judge Advocate General).
132 10 U.S.C. § 859.
133 M.C.I. No. 9 § 4(C)(2)(a)
134 M.C.I. No. 9 § 4(C)(1)(b).

CRS-23
M.C.O. No. 1 does not provide a route for a convicted person to appeal to any
independent authority. Persons subject to the M.O. are described as not privileged to
“seek any remedy or maintain any proceeding, directly or indirectly” in federal or
state court, the court of any foreign nation, or any international tribunal.135 However,
a defendant may petition a federal court for a writ of habeas corpus to challenge the
jurisdiction of the military commission.136
Protection against Double Jeopardy. The M.C.O. provides that the
accused may not be tried for the same charge twice by any military commission once
the commission’s finding on that charge becomes final (meaning once the verdict and
sentence have been approved).137 Therefore, apparently, jeopardy does not attach —
there has not been a “trial” — until the final verdict has been approved by the
President or the Secretary of Defense. In contrast, at general courts-martial, jeopardy
attaches after the first introduction of evidence by the prosecution. If a charge is
dismissed or is terminated by the convening authority after the introduction of
evidence but prior to a finding, through no fault of the accused, or if there is a finding
of Not Guilty, the trial is considered complete for purposes of jeopardy, and the
accused may not be tried again for the same charge by any U.S. military or federal
court without the consent of the accused.138 Although M.C.O. No. 1 provides that an
authenticated verdict139 of Not Guilty by the commission may not be changed to
Guilty,140 either the Secretary of Defense or the President may disapprove the finding
and return the case for “further proceedings” prior to the findings’ becoming final,
regardless of the verdict. If a finding of Not Guilty is referred back to the
commission for rehearing, double jeopardy may be implicated.141
135 M.O. at § 7(b).
136 See Alberto R. Gonzales, Martial Justice, Full and Fair, NY TIMES (op-ed), Nov. 30,
2001 (stating that the original M.O. was not intended to preclude habeas corpus review).
Rasul v. Bush clarified that the detainees at Guantanamo Bay have access to federal courts,
but the extent to which the findings of military commissions will be reviewable remains
unclear. 124 S. Ct. 2686 (2004).
137 M.C.O. No. 1 § 5(P). The finding is final when “the President or, if designated by the
President, the Secretary of Defense makes a final decision thereon pursuant to Section
4(c)(8) of the President’s Military Order and in accordance with Section 6(H)(6) of [M.C.O.
No. 1].” Id. § 6(H)(2).
138 10 U.S.C. § 844. Federal courts and U.S. military courts are considered to serve under
the same sovereign for purposes of double (or former) jeopardy.
139 In regular courts-martial, the record of a proceeding is “authenticated,” or certified as to
its accuracy, by the military judge who presided over the proceeding. R.C.M. 1104. None
of the military orders or instructions establishing procedures for military commissions
explains what is meant by “authenticated finding.”
140 M.C.O. No. 1 § 6(H)(2).
141 The UCMJ does not permit rehearing on a charge for which the accused is found on the
facts to be not guilty.

CRS-24
Another double jeopardy issue that might arise is related to the requirements for
the specification of charges.142 M.C.O. No. 1 does not provide a specific form for the
charges, and does not require an oath or signature.143 If the charge does not
adequately describe the offense, another trial for the same offense under a new
description is not as easily prevented. M.C.I. No. 2, setting forth elements of crimes
triable by the commissions, may provide an effective safeguard; however, new crimes
may be added to its list at any time.
The M.O. also left open the possibility that a person subject to the order might
be transferred at any time to some other governmental authority for trial.144 A federal
criminal trial, as a trial conducted under the same sovereign as a military
commission, could have double jeopardy implications if the accused had already been
tried by military commission for the same crime or crimes, even if the commission
proceedings did not result in a final verdict. The federal court would face the issue
of whether jeopardy had already attached prior to the transfer of the individual from
military control to other federal authorities.
Conversely, the M.O. provides the President may determine at any time that an
individual is subject to the M.O., at which point any state or federal authorities
holding the individual would be required to turn the accused over to military
authorities. If the accused were already the subject of a federal criminal trial under
charges for the same conduct that resulted in the President’s determination that the
accused is subject to the M.O., and if jeopardy had already attached in the federal
trial, double jeopardy could be implicated by a new trial before a military
commission. M.C.O. No. 1 does not explicitly provide for a double jeopardy defense
under such circumstances.
Rumsfeld v. Hamdan
In Rasul v. Bush,145 a divided Supreme Court declared that “a state of war is not
a blank check for the president” and ruled that persons deemed “enemy combatants”
have the right to challenge their detention before a judge or other “neutral
decision-maker.” The decision did not address the use of military commissions, but
in holding that the detainees have recourse to federal courts to challenge their
detention, makes it likely that detainees convicted by military commission will be
able to challenge such convictions in federal court. The extent to which they may
enforce any rights they may have under the Geneva Conventions and other law,
however, remains unclear. The Justice Department interprets Rasul v. Bush as a
decision regarding jurisdiction only, and considers that the 1950 Supreme Court
142 See NIMJ, supra note 36, at 39.
143 See M.C.O. No. 1 § 6(A)(1).
144 M.O. § 7(e).
145 124 S.Ct. 2686 (2004).

CRS-25
decision in Johnson v. Eisentrager146 remains applicable to limit the relief that
detainees may be granted.
Salim Ahmed Hamdan, who was captured in Afghanistan and is alleged to have
worked for Osama Bin Laden as a bodyguard and driver, brought an interlocutory
challenge to the lawfulness of the military commission convened to try him for
“conspiracy to commit attacks on civilians and civilian objects, murder and
destruction of property by an unprivileged belligerent, and terrorism.” Hamdan’s
attorney objected to the military commission rules and procedures, which he argued
were inconsistent with the UCMJ and Hamdan’s right to be treated as a prisoner of
war under the Geneva Conventions. U.S. District Judge Robertson agreed, finding
that the Geneva Conventions apply to the whole of the conflict in Afghanistan,
including under their protections all persons detained in connection with the
hostilities there.147 Accordingly, he ruled, Hamdan was entitled to be treated as a
prisoner of war until his status was determined to be otherwise by a competent
tribunal, in accordance with GPW article 5.
With respect to the President’s military order establishing military commissions,
the district court judge found no inherent authority in the President as Commander-
in-Chief of the Armed Forces to create such tribunals, and that existing statutory
authority for military commissions is limited. Interpreting the statute in light of the
Geneva Conventions, which permits the punishment of prisoners of war “only if the
sentence has been pronounced by the same courts according to the same procedure
as in the case of members of the armed forces of the Detaining Power,”148 Judge
Robertson found no congressional authority for Hamdan’s trial under the DoD’s rules
for military commissions. Hamdan, he ruled, was not “an offender triable by military
tribunal under the law of war” within the meaning of UCMJ art 21.149 Further, he
found the rules established by DoD to be fatally inconsistent with the UCMJ,
contrary to UCMJ art. 36150 because they give military authorities the power to
exclude the accused from hearings and deny him access to evidence presented against
him.151
The government appealed, arguing that the district court should not have
interfered in the military commission prior to its completion, that Hamdan is not
146 339 U.S. 763 (1950) (holding that the federal courts did not have jurisdiction to hear a
petition on behalf of German citizens who had been convicted by U.S. military commissions
in China because the writ of habeas corpus was not available to “enemy alien[s], who at no
relevant time and in no stage of [their] captivity [have] been within [the court’s]
jurisdiction”).
147 Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 161 (D.D.C. 2004) (rejecting the government’s
position that the military is engaged in two separate conflicts in Afghanistan, respectively,
against the Taliban and against Al Qaeda).
148 GPW art. 102.
149 344 F.Supp.2d at 158-59.
150 10 U.S.C. § 836 (procedures for military commissions may not be “contrary to or
inconsistent with” the UCMJ).
151 344 F.Supp.2d at 166.

CRS-26
entitled to protection from the Geneva Conventions, and that the President has
inherent authority to establish military commissions, which need not conform to
statutes regulating military courts-martial.152 The D.C. Circuit Court of Appeals
rejected the government’s argument that the federal courts had no jurisdiction to
interfere in ongoing commission proceedings, but otherwise agreed with the
government. Writing for a unanimous court, Judge Randolph reversed the lower
court’s finding, ruling that the Geneva Conventions are not judicially enforceable,153
that even if they were, Hamdan is not entitled to their protections, and that in any
event, the military commission would qualify as a “competent tribunal” where
Hamdan may challenge his non-POW status, within the meaning of U.S. Army
regulations implementing the Conventions.154
The appellate court did not accept the government’s argument that the President
has inherent authority to create military commissions without any authorization from
Congress, but found such authority in the Authorization to Use Military Force
(AUMF),155 read together with UCMJ arts. 21 and 36.156 The court, however,
interpreted art. 36 to mean that military commission rules have only to be consistent
with those articles of the UCMJ that refer specifically to military commissions, and
not that Congress meant to incorporate procedural rules for courts-martial into those
applicable to military commissions. However, because the procedural rules to be
used by the military commissions do not, in its view, affect jurisdiction, the court
found it unnecessary to resolve the issue at the interlocutory stage of the case. The
court thus left open the possibility that Hamdan can challenge the procedural rules
if he is convicted by the military commission, possibly by bringing a new habeas
corpus petition in federal court.
With respect to the Geneva Conventions, the D.C. Circuit cited to a footnote
from the Eisentrager opinion that expresses doubt that the Court could grant relief
based directly on the 1929 Geneva Convention:
We are not holding that these prisoners have no right which the military
authorities are bound to respect. The United States, by the Geneva Convention
of July 27, 1929. 47 Stat. 2021, concluded ... an agreement upon the treatment
to be accorded captives. These prisoners claim to be and are entitled to its
protection. It is, however, the obvious scheme of the Agreement that
responsibility for observance and enforcement of these rights is upon political
and military authorities. Rights of alien enemies are vindicated under it only
through protests and intervention of protecting powers as the rights of our
152 See Brief for Appellants, Hamdan v. Rumsfeld, No. 04-5393 (D.C. Cir.).
153 Rumsfeld v. Hamdan, No. 04-5393, slip op. at 10 (D.C. Cir. July 15, 2005).
154 Id. at 19.
155 Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224
(2001).
156 Hamdan, slip op. at 4.

CRS-27
citizens against foreign governments are vindicated only by Presidential
intervention.157
However, it might be noted that the Eisentrager Court did consider the 1929
Geneva Convention on Prisoners of War in the context of whether military
commissions lacked jurisdiction because they failed to apply adequate procedures.
The Court rejected the contention, but based its holding not on whether the Geneva
Conventions are enforceable in court, but on its earlier interpretation that the relevant
language in the 1929 Convention applied only to disciplinary offenses committed
during capture and not to pre-capture violations of the law of war.158 The 1949
Geneva Convention, however, was drafted to clarify that it applies to trials for any
offense, whether committed during or prior to internment.159 The Supreme Court in
Rasul remarked in a footnote that the detainees had stated a claim under the habeas
statute,160 which statute had been interpreted by the Eisentrager Court to be
inapplicable to the claims then at issue, but did not state whether the claim was based
on statute, the Constitution, or a treaty of the United States, and did not indicate
whether a treaty must be self-executing in order to be invoked in a habeas
proceeding. The D.C. Circuit interpreted Rasul to apply to jurisdiction only, and not
to imply that relief could necessarily be granted on such a claim. This issue is likely
to return to the Supreme Court for clarification.
Judge Williams wrote a concurring opinion, agreeing with the government’s
conception of the conflict with Al Qaeda as separate from the conflict with the
Taliban, but construing Common Article 3 to apply to any conflict with a non-state
actor, without regard to the geographical confinement of such a conflict within the
borders of a signatory state. Supreme Court nominee John G. Roberts concurred in
the opinion without writing separately.
Role of Congress
The President’s order appears to be broader than the authority exercised by
previous Presidents and may cover aliens in the United States legally who are citizens
of countries with which the nation is at peace. M.C.O. No. 1 clarifies that the
commissions will have jurisdiction only over violations of the law of war but does
not expressly limit jurisdiction to coincide with Congress’ authorization for the use
of force. It does not limit the provisions appearing to allow for the indefinite
detention of non-citizens, whether or not they are accused of having committed a
violation of the law of war, based solely on the President’s determination that there
157 339 U.S. at 789 n.14.
158 339 U.S. at 789-90 (citing Ex parte Quirin, 317 U.S. 1, 37 (1941); In re Yamashita, 327
U.S. 1 (1946)).
159 See HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 379-80
(1979).
160 See Rasul at 2698 (finding authority for federal court jurisdiction in 28 U.S.C. § 2241,
which grants courts the authority to hear applications for habeas corpus “within their
respective jurisdictions,” by any person who claims to be held “in custody in violation of
the Constitution or laws or treaties of the United States”).

CRS-28
is reason to believe the individual is a member of the class of persons subject to the
order, in possible contradiction to the USA PATRIOT Act.161 It does not clarify
whether the President intends to use the statutory definitions of “acts of international
terrorism” to determine who is subject to the order.
Congress has the authority to regulate the operation of military commissions,
but has not in the past prescribed procedural regulations.162 Congress may also draft
legislation defining offenses against the law of war triable by military commissions.
Because the draft regulations appear to provide some of the safeguards critics argued
were missing from the original M.O., supporters of the Administration’s policy will
likely urge Congress not to interfere. Notably, M.C.O. No 1 is subject to amendment
without notification to Congress, and the Secretary of Defense has the authority to
direct that some other procedures be used.163 M.C.O. No. 1 also states that no “other
rules” will govern, which could mean that the rules are not to be construed with
reference to the UCMJ or any other statute. Indeed, M.C.O. No. 1 § 10 states that
“[n]o provision in [the] Order shall be construed to be a requirement of the United
States Constitution.” Finally, an act of Congress would appear necessary to enable
the federal courts to take appellate jurisdiction over the military commissions.164
Several bills were introduced in the 108thCongress to address military
commissions. The Military Tribunal Authorization Act of 2003, introduced in the
Senate as Title I, subtitle C of S. 22 (Justice Enhancement and Domestic Security
Act of 2003), and in the House of Representatives as H.R. 1290, would have
authorized the establishment of extraordinary tribunals for offenses arising from the
September 11, 2001 attacks. The bill would have narrowed the field of potential
defendants from that stated in the M.O., expanded the minimum procedural
requirements to be established by the Secretary of Defense, and provided for appeal
to the Court of Appeals for the Armed Forces and review by the Supreme Court on
writ of certiorari. H.R. 2428 would have provided for congressional review and
possible disapproval of regulations relating to military tribunals. None of these bills
advanced beyond referral to committee.
Two bills in the 109th Congress would provide for military commissions. The
Guantanamo Detainees Procedures Act of 2005, H.R. 3038, affirms the President’s
authority to detain certain foreign nationals and prescribes procedural rules with
respect to their detention and possible trial by military commission, apparently
irrespective of where a covered person is captured or detained. Convictions would
be subject to administrative review by the Defense Department and appeal to the
United States Court of Appeals for the Armed Forces, with the possibility of review
by the Supreme Court on a writ of certiorari.
161 P.L. 107-56 § 412 (requiring aliens detained as suspected terrorists must be charged with
a crime, subjected to removal proceedings under the Immigration and Naturalization Act,
or released with seven days).
162 See 10 U.S.C. § 836 (delegating authority to the President).
163 See M.C.O. No. 1 §. 1.
164 See In re Yamashita, 327 U.S. 1, 8 (1946); Ex parte Vallandigham, 68 (1 Wall.) 243
(1863).

CRS-29
The Military Commissions Act of 2005, H.R. 3044, would amend the UCMJ to
include a new article 135a, entitled “Military commissions for offenses against the
law of war or in furtherance of terrorism.” The bill would authorize the President to
appoint military commissions to try law-of-war violations or “any offense defined in
United States law when such offense is committed in furtherance of international
terrorism as defined in section 2331 of title 18.”165 The bill does not contain
geographical limitations as to jurisdiction; the use of military commissions to try
aliens for terrorism-related crimes not cognizable under the law of war, at least for
offenses committed within the United States, could raise constitutional questions.166
The bill would authorize the President to promulgate procedural rules for trials
under UCMJ art. 36 (10 U.S.C. § 836), but would expressly require such rules to
contain certain minimum due process guarantees, including the right to a fair trial.
Unlike the military commissions established under M.C.O. No. 1, the proposed
military commissions under H.R. 3044 would have a judge advocate appointed as the
presiding officer, who would act in a role similar to that of military judge. The
presiding officer would instruct the members of the commission on all matters of law
and procedure, including interlocutory questions that arise during the proceedings.
Other commission members would vote to decide the factual issues. The Court of
Appeals of the Armed Forces (CAAF) would review sentences of death or
imprisonment for five or more years, or other cases as prescribed by the President.
The bill would also require DoD to submit an annual report on its use of military
commissions, applicable procedural rules, and an accounting of funds.
The following charts provide a comparison of the proposed military tribunals
under the regulations issued by the Department of Defense, standard procedures for
general courts-martial under the Manual for Courts-Martial, and military tribunals as
proposed H.R. 3038 and H.R. 3044. Table 1 compares the legal authorities for
establishing military tribunals, the jurisdiction over persons and offenses, and the
different structures of the tribunals. Table 2, which compares procedural safeguards
incorporated in the DoD regulations and the UCMJ, follows the same order and
format used in CRS Report RL31262, Selected Procedural Safeguards in Federal,
Military, and International Courts
, in order to facilitate comparison of the proposed
legislation to safeguards provided in federal court and the International Criminal
Court.
165 18 U.S.C. § 2331 defines “international terrorism” to mean activities that —
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal
laws of the United States or of any State, or that would be a criminal violation if
committed within the jurisdiction of the United States or of any State;
(B) appear to be intended —
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or
kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United States, or transcend
national boundaries in terms of the means by which they are accomplished, the persons
they appear intended to intimidate or coerce, or the locale in which their perpetrators
operate or seek asylum.
166 See, e.g., Wong Wing v. United States, 163 U.S. 228 (1896)(aliens are entitled to due
process of law).

CRS-30
Table 1. Comparison of Courts-Martial and Military Commission Rules
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
Authority
U.S. Constitution, Article I,
U.S. Constitution, Article II;
U.S. Constitution, Article I,
U.S. Constitution, Article I,
§ 8.
Presidential Military Order of
§ 8.
§ 8.
Nov. 13, 2001 (M.O).
Procedure
Rules are provided by the
Rules are issued by the
The President may prescribe
The Secretary of Defense, in
Uniform Code of Military
Secretary of Defense pursuant
rules of evidence and
consultation with the Secretary
Justice (UCMJ), chapter 47,
to the M.O. No other rules
procedure for trial by a
of State and the Attorney
title 10, and the Rules for
apply (presumably excluding
military commission pursuant
General, prescribes rules of
Courts-Martial (R.C.M.) and
the UCMJ).
to art. 36, UCMJ. The
evidence and procedure.
the Military Rules of Evidence
§ 1.
President may further delegate
§ 5(c).
(Mil. R. Evid.), issued by the
The President has declared it
authority to prescribe such
President pursuant to art. 36,
“impracticable” to employ
rules to the Secretary of
UCMJ.
procedures used in federal
Defense.
10 U.S.C. § 836.
court, pursuant to 10 U.S.C.
Proposed 10 U.S.C. § 935a(i).
§ 836.
Jurisdiction over
Members of the armed forces,
Individual subject to M.O.,
Any person, not a citizen of
An individual, not a United
Persons
cadets, midshipmen, reservists
determined by President to be:
the United States (accused of
States person, lawful
while on inactive-duty
1. a non-citizen, and
certain offenses).
permanent resident, or POW,
training, members of the
2. a member of Al Qaeda or
Proposed 10 U.S.C. § 935a(b).
who is accused of knowingly
National Guard or Air
person who has engaged in
planning, authorizing,
National Guard when in
acts related to terrorism
committing, aiding, or abetting
federal service, prisoners of
against the United States, or
one or more terrorist acts
war in custody of the armed
who has harbored one or more
against the United States; or is
forces, civilian employees
such individuals
accused of being part of or

CRS-31
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
accompanying the armed
and is referred to the
supporting forces engaged in
forces in time of declared war,
commission by the Appointing
armed conflict against the
and certain others, including
Authority.
United States.
“persons within an area leased
§ 3(A).
§ 2(b).
by or otherwise reserved or
acquired for the use of the
United States.”
10 U.S.C. § 802; United States
v. Averette, 17 USCMA 363
(1968) (holding “in time of
war” to mean only wars
declared by Congress.
Individuals who are subject to
military tribunal jurisdiction
under the law of war may also
be tried by general court
martial.
10 U.S.C. § 818.
Jurisdiction over
Any offenses made punishable
Offenses in violation of the
Offenses against the law of
Violations of the law of war,
Offenses
by the UCMJ; offenses subject
laws of war and all other
war or any offense defined in
international laws of armed
to trial by military tribunal
offenses triable by military
United States law when such
conflict, and crimes against
under the law of war.
commission.
offense is committed in
humanity targeted against
10 U.S.C. § 818.
§ 3(B).
furtherance of international
United States persons or
M.C.I. No. 2 clarifies that
terrorism as defined in 18
residents.
terrorism and related crimes
U.S.C. § 2331.
§ 5(b)

CRS-32
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
are “crimes triable by military
Proposed 10 U.S.C. § 935a(b).
commission.”
Composition
A military judge and not less
From three to seven members,
From three to seven members;
Procedural rules must require
than five members.
as determined by the
in a cases where the death
that the tribunal be comprised
R.C.M. 501.
Appointing Authority.
penalty is possible, the
of a military judge and not less
§ 4(A)(2).
commission must have seven
than five members.
members.
§ 6(a)(20).
Proposed 10 U.S.C. § 935a(c)
Source: Congressional Research Service.

CRS-33
Table 2. Comparison of Procedural Safeguards
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
Presumption
If the defendant fails to enter a
The accused shall be presumed
Procedural rules are required to
Procedural rules are required to
of Innocence
proper plea, a plea of not guilty
innocent until proven guilty.
provide that the accused must be
provide that the accused be
will be entered.
§ 5(B).
presumed innocent until proven
presumed innocent until proven
R.C.M. 910(b).
Commission members must base
guilty on each element of an
guilty, and not be found guilty
Members of court martial must
their vote for a finding of guilty
offense.
except upon proof beyond a
be instructed that the “accused
on evidence admitted at trial.
Proposed 10 U.S.C. § 935a(i)(2).
reasonable doubt.
must be presumed to be innocent
§§ 5(C); 6(F).
§ 6(a)(14).
until the accused’s guilt is
The Commission must determine
established by legal and
the voluntary and informed
competent evidence beyond a
nature of any plea agreement
reasonable doubt.”
submitted by the accused and
R.C.M. 920(e).
approved by the Appointing
The accused shall be properly
Authority before admitting it as
attired in uniform with grade
stipulation into evidence.
insignia and any decorations to
§ 6(B).
which entitled. Physical restraint
shall not be imposed unless
prescribed by the military judge.
R.C.M. 804.
Right to
Coerced confessions or
Not provided. Neither the M.O.
Procedural rules must provide
Procedural rules must provide
Remain Silent
confessions made without
nor M.C.O. requires a warning
that evidence obtained through
that the accused not be
statutory equivalent of Miranda
or bars the use of statements
the use of torture will not be
compelled to confess guilt.
warning are not admissible as
made during military
admitted in evidence at trial by a
§ 6(a)(15).

CRS-34
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
evidence. Persons subject to the
interrogation, or any coerced
military commission. Proposed
Presumably, art. 31 UCMJ
UCMJ are prohibited from
statement, from military
10 U.S.C. § 935a(i)(5-7).
would also apply, insofar as it
compelling any individual to
commission proceedings.
Presumably, art. 31 UCMJ
prohibits service members from
make a confession
Art. 31(a), UCMJ (10 U.S.C. §
would also apply, insofar as it
compelling testimony, but not as
10 U.S.C. § 831.
831) bars persons subject to it
prohibits service members from
to its exclusionary rule.
The prosecutor must notify the
from compelling any individual
compelling testimony, but not as
10 U.S.C. § 831.
defense of any incriminating
to make a confession, but there
to its exclusionary rule.
Rules must also afford the
statements made by the accused
does not appear to be a remedy
10 U.S.C. § 831.
accused “all necessary means of
that are relevant to the case prior
in case of violation. No person
defense before and after the
to the arraignment. Motions to
subject to the UCMJ may
trial.”
suppress such statements must be
compel any person to give
§ 6(a)(11).
made prior to pleading.
evidence before any military
Mil. R. Evid. 304.
tribunal if the evidence is not
material to the issue and may
tend to degrade him.
10 U.S.C. § 831.
Freedom from
“Evidence obtained as a result of
Not provided; no exclusionary
Not provided.
Not provided.
Unreasonable
an unlawful search or seizure ...
rule appears to be available.
Searches &
is inadmissible against the
However, monitored
Seizures
accused ...” unless certain
conversations between the
exceptions apply.
detainee and defense counsel
Mil. R. Evid. 311.
may not be communicated to
“Authorization to search” may be
persons involved in prosecuting
oral or written, and may be
the accused or used at trial
issued by a military judge or an
M.C.O. No. 3.

CRS-35
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
officer in command of the area to
No provisions for determining
be searched, or if the area is not
probable cause or issuance of
under military control, with
search warrants are included.
authority over persons subject to
military law or the law of war. It
Insofar as searches and seizures
must be based on probable cause. take place outside of the United
Mil. R. Evid. 315.
States against non-U.S. persons,
Interception of wire and oral
the Fourth Amendment may not
communications within the
apply.
United States requires judicial
United States v. Verdugo
application in accordance with 18
Urquidez, 494 U.S. 259 (1990).
U.S.C. §§ 2516 et seq.
Mil. R. Evid. 317.
A search conducted by foreign
officials is unlawful only if the
accused is subject to “gross and
brutal treatment.”
Mil. R. Evid. 311(c).
Assistance of
The right to an attorney attaches
M.C.O. 1 provides that the
Procedural rules are required to
Procedural rules must ensure that
Effective
during the investigation phase
accused must be represented “at
provide that the accused be
the accused has a right to be
Counsel
under art. 32, UCMJ.
all relevant times” (presumably,
entitled to “assistance of counsel
represented by counsel.
10 U.S.C. § 832.
once charges are approved until
at all stages of proceedings” and
§ 6(a)(6).
The defendant has a right to
findings are final — but not for
to “adequate time and facilities
military counsel at government
individuals who are detained but
available for the preparation of
expense. The defendant may
not charged) by detailed defense
his defense.” The accused would

CRS-36
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
choose counsel, if that attorney is
counsel.
also have the right to represent
reasonably available, and may
§ 4(C)(4).
himself , subject to the discretion
hire a civilian attorney in
The accused is assigned a
of the presiding officer.
addition to military counsel.
military judge advocate to serve
Proposed 10 U.S.C. § 935a(i)(8).
10 U.S.C. § 838.
as counsel, but may request to
Trial and defense counsel would
Appointed counsel must be
replace or augment the detailed
be detailed on the same basis as
certified as qualified and may not
counsel with a specific officer, if
such counsel are detailed for a
be someone who has taken any
that person is available.
general court-martial under 10
part in the investigation or
§ 4(C)(3)(a).
U.S.C. § 827 (UCMJ art. 27),
prosecution, unless explicitly
The accused may also hire a
which delegates to the
requested by the defendant.
civilian attorney who is a U.S.
“Secretaries involved” the
10 U.S.C. § 827.
citizen, is admitted to the bar in
authority to make regulations
The attorney-client privilege is
any state, district, or possession,
concerning the appointment of
honored.
has a SECRET clearance (or
counsel. Presumably, the rules
Mil. R. Evid. 502.
higher, if necessary for a
for military commissions could
particular case), and agrees to
differ from those for courts-
comply with all applicable rules.
martial. The right of the accused
The civilian attorney does not
to select reasonably available
replace the detailed counsel, and
counsel, found in 10 U.S.C.
is not guaranteed access to
§ 838, would not be
classified evidence or closed
incorporated.
hearings.
Proposed 10 U.S.C. § 935a(e).
§ 4(C)(3)(b).
Procedural rules would be
Defense Counsel may present
required to provide that detailed
evidence at trial and cross-
defense counsel may not be

CRS-37
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
examine witnesses for the
excluded from any trial
prosecution.
proceeding or any portion
§ 5(I).
thereof.
The Appointing Authority must
Proposed 10 U.S.C. §
order such resources be provided
935a(i)(12).
to the defense as he deems
necessary for a “full and fair
trial.”
§ 5(H).
Communications between
defense counsel and the accused
are subject to monitoring by the
government. Although
information obtained through
such monitoring may not be used
as evidence against the accused,
M.C.I. No. 3, the monitoring
could have a chilling effect on
attorney-client conversations,
possibly hampering the ability of
defense counsel to provide
effective representation.
Right to
The right to indictment by grand
Probably not applicable to
Procedural rules are required to
Procedural rules are required to
Indictment
jury is explicitly excluded in
military commissions, provided
provide that the accused is
provide a preliminary proceeding

CRS-38
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
and
“cases arising in the land or naval
the accused is an enemy
informed of the charges against
within 30 days of detention,
Presentment
forces.”
belligerent.
him in a language he understands
which may be continued for an
U.S. Constitution, Amendment
See Ex parte Quirin, 317 U.S. 1
as soon as practicable prior to
additional 30 days for good
V.
(1942).
trial.
cause shown, to determine
Whenever an offense is alleged,
The Office of the Chief
Proposed 10 U.S.C. § 935a(i)(3).
whether there is jurisdiction
the commander is responsible for
Prosecutor prepares charges for
There is no requirement for a
under over the person and the
initiating a preliminary inquiry
referral by the Appointing
preliminary inquiry.
offenses charged.
under art. 32, UCMJ, and
Authority.
§ 6(a)(18).
deciding how to dispose of the
§ 4(B).
offense.
There is no requirement for an
10 U.S.C. § 832; R.C.M. 303-06.
impartial investigation prior to a
The accused must be advised of
referral of charges. The
the charges brought against him
Commission may adjust a
and has the right to an attorney
charged offense in a manner that
during the investigation and
does not change the nature or
hearing proceedings.
increase the seriousness of the
10 U.S.C. § 832.
charge.
§ 6(F).
Right to
Charges and specifications must
Copies of approved charges are
No express requirement that
No express requirement that
Written
be signed under oath and made
provided to the accused and
charges be written.
charges be written.
Statement of
known to the accused as soon as
Defense Counsel in English and
Charges
practicable.
another language the accused
10 U.S.C. § 830.
understands, if appropriate.
§ 5(A).
Right to be
The presence of the accused is
The accused may be present at
The procedural rules are required
The procedural rules are required

CRS-39
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
Present at
required during arraignment, at
every stage of trial before the
to provide that the accused has
to provide that the accused has
Trial
the plea, and at every stage of the
Commission unless the Presiding
the “right to be present at each
the opportunity to be present at
court-martial unless the accused
Officer excludes the accused
stage of the proceedings, unless
trial.
waives the right by voluntarily
because of disruptive conduct or
he engages in conduct that the
§ 6(a)(5).
absenting him or herself from the
for security reasons, or “any
presiding officer determines to
Rules must also provide that the
proceedings after the arraignment
other reason necessary for the
be disruptive, or the presiding
proceedings be made
or by persisting in conduct that
conduct of a full and fair trial.”
officer determines that exclusion
simultaneously intelligible for
justifies the trial judge in
§§ 4(A)(5)(a); 5(K); 6B(3).
of the accused is necessary to
participants not conversant in the
ordering the removal of the
protect national security interests
English language by translation
accused from the proceedings.
of the United States.”
or interpretation.
R.C.M. 801.
Proposed 10 U.S.C.
§ 6(a)(3).
§ 935a(i)(12).
Prohibition
Courts-martial will not enforce
Not provided, but may be
Not expressly provided, but may
Procedural rules are to prohibit
against Ex
an ex post facto law, including
implicit in restrictions on
be implicit in jurisdictional
conviction for an alleged offense
Post Facto
increasing amount of pay to be
jurisdiction over offenses.
limitation to “offenses against
not based upon an act, offense,
Laws or
forfeited for specific crimes.
See § 3(B). M.C.I. No. 2 § 3(A)
the law of war or any offense
or omission that was not an
Punishments
U.S. v. Gorki, 47 M.J. 370
provides that “no offense is
defined in United States law
offense under law when it was
(1997).
cognizable in a trial by military
when such offense is committed
committed, and to provide that
commission if that offense did
in furtherance of international
the penalty for an offense not be
not exist prior to the conduct in
terrorism.”
greater than it was when the
question.”
offense was committed.

CRS-40
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
§ 6(a)(12-13).
Protection
Double jeopardy clause applies.
The accused may not be tried
Procedural rules are required to
Not expressly provided. The
against Double
See Wade v. Hunter, 336 US 684,
again by any Commission for a
prohibit the trial of an accused “a
Secretary of Defense is not
Jeopardy
688-89 (1949).
charge once a Commission’s
second time for the same
required to review verdicts of not
Art. 44, UCMJ prohibits double
finding becomes final.
offense,” presumably including
guilty.
jeopardy, provides for jeopardy
(Jeopardy appears to attach when
cases where the accused has
§ 6(e).
to attach after introduction of
the finding becomes final, at
been tried for the offense in
evidence.
least with respect to subsequent
another jurisdiction, although it
10 U.S.C. § 844.
U.S. military commissions.)
could be read to prohibit only
General court-martial proceeding
§ 5(P).
second trials by military
is considered to be a federal trial
However, although a finding of
commission.
for double jeopardy purposes.
Not Guilty by the Commission
Proposed 10 U.S.C.
Double jeopardy does not result
may not be changed to Guilty,
§ 935a(i)(13).
from charges brought in state or
either the reviewing panel, the
The Secretary of Defense does
foreign courts, although court-
Appointing Authority, the
not have the discretion to
martial in such cases is
Secretary of Defense, or the
disapprove a finding of “not
disfavored.
President may return the case for
guilty,” and consequently, such
U. S. v. Stokes, 12 M.J. 229
“further proceedings” prior to
verdicts would not be subject to
(C.M.A. 1982).
the findings’ becoming final. If a
appellate review.
Once military authorities have
finding of Not Guilty is vacated
Proposed 10 U.S.C. § 935a(k).
turned service member over to
and retried, double jeopardy may
civil authorities for trial, military
be implicated.
may have waived jurisdiction for
The order does not specify
that crime, although it may be
whether a person already tried by
possible to charge the individual
any other court or tribunal may

CRS-41
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
for another crime arising from
be tried by a military
the same conduct.
commission under the M.O.
See 54 AM. JUR. 2D, Military and
The M.O. reserves for the
Civil Defense §§ 227-28.
President the authority to direct
The government may only appeal
the Secretary of Defense to
orders or rulings that do not
transfer an individual subject to
amount to a finding of not guilty.
the M.O. to another
10 U.S.C. § 862.
governmental authority, which is
The judge advocate only reviews
not precluded by the order from
cases in which there has been a
prosecuting the individual. This
finding of guilty.
subsection could be read to
10 U.S.C. § 864.
authorize prosecution by federal
authorities after the individual
was subject to trial by military
commission.
M.O. § 7(e).
Speedy &
In general, accused must be
The Commission is required to
The presiding officer would be
Procedural rules would be
Public Trial
brought to trial within 120 days
proceed expeditiously,
responsible for ensuring an
required to provide that the
of the preferral of charges or the
“preventing any unnecessary
expeditious trial.
proceeding and disposition be
imposition of restraint,
interference or delay.”
Proposed 10 U.S.C. § 935a(d).
expeditious.
whichever date is earliest.
§ 6(B)(2).
Procedural rules are required to
§ 6(a)(9).
R.C.M. 707(a).
Failure to meet a specified
provide for the right to a public
Procedural rules are required to
Charges must be referred within
deadline does not create a right
trial, “unless the appointing
provide a preliminary proceeding

CRS-42
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
eight days of arrest or
to relief.
authority or presiding officer
within 30 days of detention.
confinement, unless it is not
§ 10.
determines that a closed trial, or
§ 6(a)(18).
practicable to do so.
The rules do not prohibit
any portion thereof, is necessary
Rules must also provide that the
10 U.S.C. § 835.
detention without charge, or
to the national security of the
trial be open and public,
The right to a public trial applies
require charges to be brought
United States.”
including public availability of
in courts-martial but is not
within a specific time period.
Proposed 10 U.S.C. § 935a(i)(4).
the transcripts of the trial and the
absolute.
Proceedings “should be open to
pronouncement of judgment,
R.C.M. 806.
the maximum extent possible,”
consistent with the need to
The military trial judge may
but the Appointing Authority has
protect participants and the need
exclude the public from portions
broad discretion to close
to protect sensitive government
of a proceeding for the purpose
hearings, and may exclude the
information, the publication of
of protecting classified
public or accredited press from
which is certified to pose a risk
information if the prosecution
open proceedings.
of identifiable harm to the
demonstrates an overriding need
§ 6(B)(3).
prosecution of military
to do so and the closure is no
objectives; significant,
broader than necessary.
identifiable harm to intelligence
United States v. Grunden, 2 M.J.
sources or methods; or
116 (CMA 1977).
substantial risk that such
evidence could be used for
planning future terrorist attacks.
§ 6(a)(16); § 6(c-d).
Burden &
Members of court martial must
Commission members may vote
Procedural rules must provide
Procedural rules must provide

CRS-43
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
Standard of
be instructed that the burden of
for a finding of guilty only if
that “the burden of proof shall be
that the accused be “presumed
Proof
proof to establish guilt is upon
convinced beyond a reasonable
upon the prosecution to prove
innocent until proven guilty,”
the government and that any
doubt, based on evidence
each element of an offense
and “not be found guilty except
reasonable doubt must be
admitted at trial, that the accused
beyond a reasonable doubt.”
upon proof beyond a reasonable
resolved in favor of the
is guilty.
Proposed 10 U.S.C. § 935a(i)(2).
doubt.”
defendant.
§§ 5(C); 6(F).
§ 6(a)(14).
R.C.M. 920(e).
The burden of proof of guilt is
Under the rules, the tribunal
on the prosecution, § 5(C);
would be required to apply
however, M.C.I. No. 2 states that
“reasonable rules of evidence
element of wrongfulness of an
designed to ensure admission
offense is to be inferred absent
only of reliable information or
evidence to the contrary.
material with probative value.”
M.C.I. No. 2 § 4(B).
§ 6(a)(10).
Privilege
No person subject to the UCMJ
The accused is not required to
Procedural rules must provide
Procedural rules must provide
Against Self-
may compel any person to
testify, and the commission may
that the accused may not be
that the accused “not be
Incrimination
answer incriminating questions.
draw no adverse inference from
compelled to testify or present
compelled to confess guilt or
10 U.S.C. § 831(a).
a refusal to testify.
evidence against himself, that no
testify against himself.”
Defendant may not be compelled
§ 5(F).
adverse inference will be drawn
§ 6(a)(15).
to give testimony that is
However, there is no rule against
against him for declining to
There is no express requirement
immaterial or potentially
the use of coerced statements as
testify.
for a rule prohibiting adverse
degrading.
evidence.
Proposed 10 U.S.C. § 935a(i)(5-
inferences against an accused for
10 U.S.C. § 831(c).
There is no specific provision for
7).
not testifying. Presumably, art.
No adverse inference is to be
immunity of witnesses to prevent
Presumably, art. 31 UCMJ
31 UCMJ would also apply,
drawn from a defendant’s refusal
their testimony from being used
would also apply, insofar as it
insofar as it prohibits service

CRS-44
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
to answer any questions or testify
against them in any subsequent
prohibits service members from
members from compelling
at court-martial.
legal proceeding, however, under
compelling testimony, but not as
testimony, but not as to its
Mil. R. Evid. 301(f).
18 U.S.C. §§ 6001 et seq., a
to its exclusionary rule.
exclusionary rule.
Witnesses may not be compelled
witness required by a military
10 U.S.C. § 831.
10 U.S.C. § 831.
to give testimony that may be
tribunal to give incriminating
Immunity for witnesses would
Immunity for witnesses would
incriminating unless granted
testimony is immune from
presumably be provided for in 18
presumably be provided for in 18
immunity for that testimony by a
prosecution in any criminal case,
U.S.C. §§ 6001 et seq.
U.S.C. §§ 6001 et seq.
general court-martial convening
other than for perjury, giving
authority, as authorized by the
false statements, or otherwise
Attorney General, if required.18
failing to comply with the order.
U.S.C. § 6002; R.C.M. 704.
18 U.S.C. §§6002; 6004.
Right to
Hearsay rules apply as in federal
Defense Counsel may cross-
Procedural rules are required to
Procedural rules are required to
Examine or
court.
examine the Prosecution’s
provide the accused the right to
provide the accused access to all
Have
Mil. R. Evid. 801 et seq.
witnesses who appear before the
present evidence and to
of the evidence supporting each
Examined
A duly authenticated deposition,
Commission.
cross-examine each witness and
alleged offense be given to the
Adverse
or video or audio-taped
§ 5(I).
to have access to all evidence
accused, unless such information
Witnesses
testimony, may be used in lieu of
However, the Commission may
that trial counsel intends to offer
is certified by the head of the
a live witness only if the witness
also permit witnesses to testify
at trial.
appropriate agency to pose a risk
is beyond 100 miles from the
by telephone or other means not
Proposed 10 U.S.C. § 935a(i)(9-
of identifiable harm to the
place or trial, the witness is
requiring the presence of the
11).
prosecution of military
unavailable due to death, health
witness at trial, in which case
There is no express provision for
objectives; significant,
reasons, military necessity,
cross-examination may be
the use of evidence where a
identifiable harm to intelligence
nonamenability to process, or
impossible.
witness is unavailable (hearsay),
sources or methods; or
other reasonable cause, or the
§ 6(D)(2).
however, UCMJ art. 49
substantial risk that such
whereabouts of the witness is
In the case of closed proceedings
expressly applies to military
evidence could be used for

CRS-45
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
unknown.
or classified evidence, only the
commissions as it does for
planning future terrorist attacks.
In capital cases, sworn
detailed defense counsel may be
general courts-martial.
§ 6(a)(4); § 6(b-c).
depositions may not be used in
permitted to participate. Hearsay
10 U.S.C. § 849.
Rules must also provide the
lieu of witness, unless court-
evidence is admissible as long as
There is no provision for
accused the opportunity to
martial is treated as non-capital
the Commission determines it
preventing access to classified
respond to the evidence
or it is introduced by the defense.
would have probative value to a
evidence to be used against the
supporting each alleged offense;
10 U.S.C. § 849.
reasonable person.
accused, although the accused
to obtain exculpatory evidence
The military judge may allow the
§ 6(D)(1).
may be prohibited from
from the prosecution; and to
government to use a summary of
The Commission may consider
attending classified proceedings.
present exculpatory evidence.
classified information, unless the
testimony from prior trials as
Proposed 10 U.S.C.
§ 6(a)(7).
use of the classified information
well as sworn and unsworn
§935a(i)(12).
Rules must further provide the
itself is necessary to afford the
written statements, apparently
accused the opportunity to
accused a fair trial.
without regard to the availability
confront and cross-examine
Mil. R. Evid. 505.
of the declarant, in apparent
adverse witnesses and to offer
contradiction with 10 U.S.C.
witnesses.
§ 849.
§ 6(a)(8).
§ 6(D)(3).
There is no express provision for
the use of evidence where a
witness is unavailable (hearsay),
but such evidence might qualify
as admissible under the
“reasonable rules of evidence
designed to ensure admission
only of reliable information or
material with probative value.”

CRS-46
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
§ 6(a)(10).
Right to
Defendants before court-martial
The accused may obtain
Procedural rules are required to
Rules must provide the accused
Compulsory
have the right to compel
witnesses and documents “to the
provide the accused the equal
the opportunity to offer
Process to
appearance of witnesses
extent necessary and reasonably
opportunity to obtain witnesses
witnesses, but it is unclear
Obtain
necessary to their defense.
available as determined by the
and other evidence.
whether there is any authority to
Witnesses
R.C.M. 703.
Presiding Officer.”
Proposed 10 U.S.C.
compel witnesses to appear.
Process to compel witnesses in
§ 5(H).
§ 935a(i)(10).
§ 6(a)(8).
court-martial cases is to be
The Commission has the power
The authority of military
similar to the process used in
to summon witnesses as
commissions to subpoena
federal courts.
requested by the Defense.
witnesses not subject to the
10 U.S.C. § 846.
§ 6(A)(5).
UCMJ is not clearly stated in the
The power to issue subpoenas is
UCMJ, but those witnesses who
exercised by the Chief
are “duly subpeonaed” and
Prosecutor; the Chief Defense
refuse to appear or testified are
Counsel has no such authority.
subject to trial in federal court.
M.C.I. Nos. 3-4.
10 U.S.C. § 847.
Right to Trial
A qualified military judge is
The Presiding Officer is
Not expressly provided. Article
Procedural rules must require
by Impartial
detailed to preside over the court-
appointed directly by the
37, UCMJ, prohibits any
that the tribunal be “independent
Judge
martial. The convening authority
Appointing Authority, which
unlawful attempt by a person
and impartial.”
may not prepare or review any
decides all interlocutory issues.
subject to the UCMJ to coerce or
§ 6(a)(1).
report concerning the
There do not appear to be any
influence the action of any
performance or effectiveness of
special procedural safeguards to
military tribunal.
the military judge.
ensure impartiality, but
10 U.S.C. § 837.

CRS-47
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
10 U.S.C. § 826.
challenges for cause have been
Article 37, UCMJ, prohibits
permitted.
unlawful influence of courts-
§ 4(A)(4).
martial through admonishment,
The presiding judge, who
censure, or reprimand of its
decides issues of admissibility of
members by the convening
evidence, also votes as part of
authority or commanding officer,
the commission on the finding of
or any unlawful attempt by a
guilt or innocence.
person subject to the UCMJ to
Article 37, UCMJ, provides that
coerce or influence the action of
no person subject to the UCMJ
a court-martial or convening
“may attempt to coerce or, by
authority.
any unauthorized means,
10 U.S.C. § 837.
influence the action of a
Military defendants have the
court-martial or any other
opportunity to challenge the
military tribunal or any member
military judge for cause.
thereof, in reaching the findings
10 U.S.C. § 41.
or sentence in any case, or the
action of any convening,
approving, or reviewing
authority with respect to his
judicial acts.”
10 U.S.C. § 837.
M.C.I. No. 9 clarifies that Art.
37 applies with respect to
members of the review panel.

CRS-48
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
MCI No. 9 § 4(F).
Right to Trial
A military accused has no Sixth
Military tribunals probably do
Military commissions are to
Procedural rules must require
By Impartial
Amendment right to a trial by
not require a jury trial.
have three to seven
that the tribunal be “independent
Jury
petit jury.
See Ex Parte Quirin, 317 U.S. 1,
commissioned officers to serve
and impartial.”
Ex Parte Quirin, 317 U.S. 1, 39-
39-40 (1942) (dicta).
as members, but safeguards
§ 6(a)(1).
40 (1942) (dicta).
The commission members are
concerning their impartiality are
However, “Congress has
appointed directly by the
not expressly addressed.
provided for trial by members at
Appointing Authority. While the
Proposed 10 U.S.C. § 935a(c).
a court-martial.”
Commission is bound to proceed
United States v. Witham, 47 MJ
impartially, there do not appear
297, 301 (1997); 10 U.S.C.
to be any special procedural
§ 825.
safeguards designed to ensure
The Sixth Amendment
their impartiality. However,
requirement that the jury be
defendants have successfully
impartial applies to court-martial
challenged members for cause.
members and covers not only the
§ 6(B).
selection of individual jurors, but
also their conduct during the trial
proceedings and the subsequent
deliberations.
United States v. Lambert, 55 M.J.
293 (2001).
Military defendants have the
opportunity to exercise
peremptory challenge and

CRS-49
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
challenge panel members for
cause.
10 U.S.C. § 41.
The military judge does not take
part in the deliberations of the
panel, and cannot preside over
cases in which he has taken part
in any investigation or acted as
accuser or counsel.
10 U.S.C. § 26.
The absence of a right to trial by
jury precludes criminal trial of
civilians by court-martial.
Reid v. Covert, 354 U.S. 1
(1957); Kinsella v. United States
ex rel. Singleton, 361 U.S. 234
(1960).
Right to
The appropriate Court of
There is no stated right to appeal
A person found guilty by
The procedural rules must, “at a
Appeal to
Criminal Appeals automatically
outside the Defense Department.
military commission and
minimum, allow for review of
Independent
reviews all convictions that result
A review panel appointed by the
sentence to death or
the proceedings of the tribunals,
Reviewing
in sentences of sufficient
Secretary of Defense reviews the
imprisonment for more than five
and the convictions and
Authority
severity, unless the defendant
record of the trial in a closed
years would have a right to a
sentences of such tribunals, by
waives such review. 10 U.S.C.
conference, disregarding any
review of that finding and
the [CAAF].” The Supreme
§ 622 The defendant may seek
procedural variances that would
sentence, with respect to issues
Court would have jurisdiction to
discretionary review by the Court
not materially affect the outcome
of law, by the CAAF, and may
grant certiorari in such cases.

CRS-50
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
of Appeals for the Armed Forces
of the trial, and recommends its
appeal an adverse ruling there to
§ 6(e)(2-3).
(CAAF), 10 U.S.C. § 867, and,
disposition to the Secretary of
the Supreme Court on a writ of
The bill would not explicitly
upon losing an appeal on the
Defense. Although the Defense
certiorari.
alter the jurisdiction of the
merits at the CAAF, may seek
Counsel has the duty of
Proposed 10 U.S.C. § 935a(k).
CAAF.
review from the Supreme Court
representing the interests of the
10 U.S.C. § 867.
on a writ of certiorari.
accused during any review
The procedural rules must
28 U.S.C. § 1259.
process, the review panel need
provide that the right to habeas
The writ of habeas corpus
not consider written submissions
corpus may not be infringed.
provides the primary means by
from the Defense, nor does there
§ 6(e)(19).
which those sentenced by
appear to be an opportunity to
military court, having exhausted
rebut the submissions of the
military appeals, can challenge a
prosecution. If the majority of
conviction or sentence in a
the review panel forms a
civilian court. The scope of
“definite and firm conviction
matters that a court will address
that a material error of law
is more narrow than in challenges
occurred,” it may return the case
of federal or state convictions.
to the Appointing Authority for
Burns v. Wilson, 346 U.S. 137
further proceedings.
(1953).
§ 6(H)(4).
The review panel
recommendation does not appear
to be binding. The Secretary of
Defense may serve as
Appointing Authority and as the
final reviewing authority, as
designated by the President.
The individual is not privileged
to seek any remedy in any U.S.

CRS-51
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
court or state court, the court of
any foreign nation, or any
international tribunal.
M.O. § 7(b).
However, the writ of habeas
corpus will likely be available
under Rasul v. Bush.
Protection
Death may only be adjudged for
The accused is permitted to
Three quarters of members
The UCMJ requirements for the
against
certain crimes where the
make a statement during
present for deliberation must
imposition of the death penalty
Excessive
defendant is found guilty by
sentencing procedures.
concur in order to issue a finding
apply in any case in which a
Penalties
unanimous vote of court-martial
§ 5(M).
of guilty, except in the case the
tribunal is requested to adjudge
members present at the time of
The death sentence may be
death penalty, in which case the
the death penalty.
the vote. Prior to arraignment,
imposed only on the unanimous
concurrence of all seven
§ 6(b).
the trial counsel must give the
vote of a seven-member panel.
members present is required.
defense written notice of
§ 6(F).
Proposed 10 U.S.C. § 935a(c).
aggravating factors the
The commission may only
The death sentence would be
prosecution intends to prove.
impose a sentence that is
available only if the accused has
R.C.M. 1004.
appropriate to the offense for
been found guilty of spying or an
A conviction of spying during
which there was a finding of
offense causing the death of one
time of war under article 106,
guilty, including death,
or more persons, where such
UCMJ, carries a mandatory death
imprisonment, fine or restitution,
offense was committed after the
penalty.
or “other such lawful
accused attained the age of
10 U.S.C. § 906.
punishment or condition of
eighteen years. A sentence of
Cruel and unusual punishment,
punishment as the commission
death would require approval by
including flogging, or branding
shall determine to be proper.”
the President.
or otherwise branding the body is
§ 6(G).
Proposed 10 U.S.C. § 935a(h).

CRS-52
Military Commissions Act of
Guantanamo Detainees
Military Commission Order
General Courts-Martial
2005
Procedures Act of 2005
No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
prohibited against persons
If the Secretary of Defense has
subject to the UCMJ.
the authority to conduct the final
10 U.S.C. § 855.
review of a conviction and
The convicted person may appeal
sentence, he may mitigate,
a sentence, and the sentence may
commute, defer, or suspend, but
be mitigated or commuted, but
not increase, the sentence.
not increased, by the judge
However, he may disapprove the
advocate reviewing the case.
findings and return them for
10 U.S.C. §§ 864, 866, 867.
further action by the military
commission.
§ 6(H).
Source: Congressional Research Service