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 July 25, 2006
Jennifer Elsea
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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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, but the Supreme Court granted review
and reversed the decision of the Court of Appeals. Military commissions will not be
able to go forward until the Department of Defense revises its rules to conform with
the Supreme Court’s Hamdan opinion or Congress approves legislation conferring
authority to promulgate rules that depart from the strictures of the Uniform Code of
Military Justice (UCMJ) and U.S. international obligations.
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 were published in 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 argued that the
enhancements do not go far enough, and the Supreme Court held that the amended
rules did not comply with the UCMJ.
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. A summary of the Hamdan case follows, in particular the shortcomings
identified by the Supreme Court. The report provides an overview of relevant
legislation (H.R. 3044, H.R. 3038, and S. 3614). 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 international criminal
tribunals.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Military Commissions: General Background . . . . . . . . . . . . . . . . . . . . 2
Military Commissions at Guantánamo Bay . . . . . . . . . . . . . . . . . . . . . . 2
Hamdan v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Department of Defense Rules for Military Commissions . . . . . . . . . . . . . . 10
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Composition and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Procedures Accorded the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Post-Trial Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Role of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
List of Tables
Table 1. Comparison of Courts-Martial and Military Commission Rules . . . . . 34
Table 2. Comparison of Procedural Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . 38

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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 of the approximately 550 persons detained at the U.S. Naval Station in
Guantanamo Bay, Cuba, in connection with the war against terrorism,1 establishing
a role for federal courts to play in determining the validity of the military
commissions convened pursuant to President Bush’s Military Order (M.O.) of
November 13, 2001.2 After dozens of petitions for habeas corpus were filed in the
federal District Court for the District of Columbia, Congress passed the Detainee
Treatment Act of 2005 (DTA),3 revoking federal court jurisdiction over habeas
claims, at least with respect to those not already pending, and created jurisdiction in
the Court of Appeals for the District of Columbia Circuit to hear appeals of final
decisions of military commissions. The Supreme Court overturned a decision by the
D.C. Circuit that had upheld the military commissions, Hamdan v. Rumsfeld,4
holding instead that although Congress has authorized the use of military
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; CRS Report RS22466, Hamdan v. Rumsfeld: Military
Commissions in the ‘Global War on Terrorism,’ by Jennifer K. Elsea.
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 P.L. 109-148, §1005(e)(1) amends 28 U.S.C. § 2441 to provide that “no court … shall have
jurisdiction to hear or consider … an application for … habeas corpus filed by … an alien
detained … at Guantanamo Bay.” However, it creates new, albeit limited, jurisdiction in the
D.C. Cir. to hear challenges of “any final decision of a Combatant Status Review Tribunal
that an alien is properly detained as an enemy combatant” as well as reviews of “final
decisions of military commissions,” which are discretionary unless the sentence is greater
than ten years or involves the death penalty. DTA § 1005(e)(2-3).
4 Hamdan v. Rumsfeld, 548 U.S. __ (2006), rev’g 415 F.3d 33 (D.C. Cir. 2005). The Court
found that the DTA does not apply to Hamdan’s petition, which was an appeal of an
interlocutory ruling rather than the final decision of a military commission, but did not
resolve whether it affects other pending cases that fall under the DTA’s provisions regarding
final review of Combatant Status Review Tribunals. Slip op. at 19, and n.14.

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commissions, such commissions must follow procedural rules as similar as possible
to courts-martial proceedings, in compliance with the Uniform Code of Military
Justice (UCMJ).5
Military Commissions: General Background. Military commissions are
courts usually set up by military commanders in the field to try persons accused of
certain offenses during war.6 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
UCMJ. 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.7 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.8 Historically, military commissions
have applied the same set of procedural rules that applied in courts-martial.9
Military Commissions at Guantánamo Bay. The President’s Military
Order establishing military commissions to try suspected terrorists has been the focus
of intense debate both at home and abroad. Critics argued that the tribunals could
violate any rights the accused may have under the Constitution as well as their rights
under 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 continued to argue that the enhancements do not go
far enough and that the checks and balances of a separate rule-making authority and
5 10 U.S.C. § 801 et seq.
6 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), by Jennifer Elsea.
7 See 10 U.S.C. § 818; 18 U.S.C. §2441.
8 See U.S. Army Field Manual (FM) 27-10, The Law of Land Warfare, section 505(e)
[hereinafter “FM 27-10”].
9 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).

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an independent appellate process are necessary.10 The release of the Military
Commission Instructions sparked renewed debate, especially concerning the
restrictions on civilian attorneys,11 resulting in further modifications to the rules.
Critics noted that the rules do not address the issue of indefinite detention without
charge, as appears to be possible under the original M.O.,12 or that the Department
of Defense may continue to detain persons who have been cleared by a military
commission.13 The Pentagon has stated that its 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.14
The Department of Defense (DoD) in 2003 released eight “Military Commission
Instructions” (“M.C.I. No. 1-8”)15 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 and amended several times since.16 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), the Appointing Authority for the
commissions, issued several Appointing Authority Regulations, governing disclosure
of communications, interlocutory motions, and professional responsibility.
10 See Letter from Timothy H. Edgar, ACLU Legislative Counsel, Military Commission
Order No. 1, March 21, 2002 (April 16, 2002), available at [http://www.aclu.org/National
Security/NationalSecurity.cfm?ID=10150&c=111] (last visited July 21, 2006); American
College of Trial Lawyers, Report on Military Commissions for the Trial of Terrorists,
March 2003 [hereinafter “ACTL”], available at [http://www.actl.com/AM/Template.cfm
?Section=All_Publications&Template=/CM/ContentDisplay.cfm&ContentFileID=63] (last
visited July 21, 2006); ACTL, Supplemental Report on Military Commissions for the Trial
of Terrorists, Oct. 2005, online at [http://www.actl.com/AM/Template.cfm?Section=Home
&template=/CM/ContentDisplay.cfm&ContentID=2152] (last visited July 21, 2006).
11 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/public.nsf/Champion
Articles/A0307p04?OpenDocument] (last visited July 21, 2006).
12 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.
13 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
William J. Haynes II to a New York Times reporter).
14 See Neil A. Lewis, Two Prosecutors Faulted Trials For Detainees, NEW YORK TIMES,
August 1, 2005, at A1.
15 Department of Defense (“DoD”) documents related to military commissions are available
online at [http://www.defenselink.mil/news/commissions.html] (last visited July 24, 2006).
16 Reprinted at 41 I.L.M. 725 (2002). The most recent version was issued Aug. 31, 2005.

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In August 2005, DoD amended M.C.O. No. 1 to make the presiding officer
function more like a judge and to have other panel members function more like a
jury. Under the new rules, the presiding officer was assigned the responsibility of
determining most questions of law while the other panel members were to make
factual findings and decide any sentence, similar to courts-martial proceedings.
Other provisions were modified to clarify the accused’s privilege to be present except
when necessary to protect classified information and only in instances where the
presiding officer concludes that the admission of such evidence would not prejudice
a fair trial and to require that the presiding officer exclude any evidence that would
result in the denial of a full and fair trial from lack of access to the information.17
President Bush determined that twenty 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.18 Six detainees declared eligible in 2003 included
two citizens of the U.K. and one Australian citizen.19 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.20 The Administration agreed to modify some of the rules with respect to
trials of Australian detainees21 and agreed to return the U.K. citizens, including the
two who had been declared eligible for trial by military commission, to Great
Britain.22 The Administration agreed to return one Australian citizen, but another,
David Hicks has been charged with conspiracy to commit war crimes; attempted
17 See Press Release, Department of Defense, Secretary Rumsfeld Approves Changes to
Improve Military Commission Procedures (Aug. 31, 2005), available at
[http://www.defenselink.mil/releases/2005/nr20050831-4608.html] (last visited July 21,
2006).
18 See Press Release, Department of Defense, President Determines Enemy Combatants
Subject to His Military Order (July 3, 2003), available at [http://www.defenselink.mil/
releases/2003/nr20030703-0173.html] (last visited July 21, 2006). 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. In 2004, 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 July 21, 2006). In November 2005, five more detainees were charged. See Press
Release, Department of Defense, Military Commission Charges Approved (November 7,
2005), available at [http://www.defenselink.mil/releases/2005/nr20051107-5078.html] (last
visited July 21, 2006).
19 See John Mintz and Glenn Frankel, 2 Britons, Australian Among Six Facing Trial, WASH.
POST, July 5, 2003, at A13.
20 See Press Releases, Department of Defense, Statement on British Detainee Meetings and
Statement on Australian Detainee Meetings (July 23, 2003), available at
[http://www.defenselink.mil/news/Aug2004/ commissions_releases.html] (last visited July
21, 2006).
21 See Press Release, Department of Defense, U.S. and Australia Announce Agreements on
Guantanamo Detainees (Nov. 25, 2003), available at [http://www.defenselink.mil/releases/
2003/nr20031125-0702.html] (last visited July 21, 2006).
22 See Ed Johnson, British Guantanamo Detainees to Be Freed, AP, Jan. 11, 2005.

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murder by an unprivileged belligerent and aiding the enemy.23 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).24 Salim Ahmed Hamdan of Yemen, accused of providing physical
security for Osama bin Laden and other high ranking Al Qaeda members and charged
with conspiracy to attack civilians, commit murder by an unprivileged belligerent and
terrorism,25 provided the Supreme Court its first opportunity to address the validity
of the military commissions.
Hamdan v. Rumsfeld
Salim Ahmed Hamdan, who was captured in Afghanistan and is alleged to have
worked for Osama Bin Laden as a body guard and driver, brought this challenge to
the lawfulness of the Secretary of Defense’s plan to try him for alleged war crimes
before a military commission,26 arguing that the military commission rules and
procedures were inconsistent with the UCMJ27 and that he had the right to be treated
as a prisoner of war under the Geneva Conventions.28 U.S. District Judge Robertson
agreed, finding no inherent authority in the President as Commander-in-Chief of the
Armed Forces to create such tribunals outside of the existing statutory authority, with
which the military commission rules did not comply. He also concluded that the
Geneva Conventions apply to the whole of the conflict in Afghanistan, including
23 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 July 21, 2006). Justice Stevens found for a plurality in the Hamdan case that
“conspiracy” is not an “offense triable by military commission” within the meaning of the
UCMJ.
24 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 July 21, 2006). 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
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, but the CAAF dismissed the petition
without prejudice in January, 2005. Al Qosi v. Altenburg, 60 M.J. 461(2005).
25 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 July 21, 2006).
26 344 F.Supp.2d 152 (D. D.C. 2004), rev’d 415 F.3d 33 (D.C. Cir. 2005), cert. granted 2005
U.S. LEXIS 8222 (Nov. 7, 2005).
27 10 U.S.C. §§ 801 et seq.
28 There are four Conventions, the most relevant of which is The Geneva Convention
Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3317 (hereinafter
“GPW”).

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under their protections all persons detained in connection with the hostilities there,29
and that Hamdan was thus entitled to be treated as a prisoner of war until his status
was determined to be otherwise by a competent tribunal, in accordance with article
5 of the Third Geneva Convention (prisoners of war).
Interpreting the UCMJ 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,”30 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 21.31 Further, he found the rules established by DoD to be
fatally inconsistent with the UCMJ, contrary to UCMJ art. 3632 because they give
military authorities the power to exclude the accused from hearings and deny him
access to evidence presented against him.33
The government appealed, arguing that the district court should not have
interfered in the military commission prior to its completion, that Hamdan is not
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.34 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,35
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.36
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
29 344 F.Supp.2d at 161.
30 GPW art. 102.
31 344 F.Supp.2d at 158-59.
32 10 U.S.C. § 836 (procedures for military commissions may not be “contrary to or
inconsistent with” the UCMJ).
33 344 F.Supp.2d at 166.
34 See Brief for Appellants, Hamdan v. Rumsfeld, No. 04-5393 (D.C. Cir.).
35 Rumsfeld v. Hamdan, 415 F.3d 33, 39-40 (D.C. Cir. July 15, 2005).
36 Id. at 19.

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(AUMF),37 read together with UCMJ arts. 21 and 36.38 The court 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 did not, in its view, affect jurisdiction, the court found it
unnecessary to resolve the issue at the interlocutory stage of the case.
With respect to the Geneva Conventions, the D.C. Circuit cited to a footnote
from the World War II Eisentrager39 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
citizens against foreign governments are vindicated only by Presidential
intervention.40
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.
The Supreme Court granted review and reversed.
Before reaching the merits of the case, the Supreme Court dispensed with the
government’s argument that Congress had, by passing the Detainee Treatment Act
37 Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).
38 Hamdan, 415 F.3d at 37.
39 Johnson v. Eisentrager, 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”). The Supreme Court, in Rasul v. Bush, declined to apply
Eisentrager to deny Guantánamo detainees the right to petition for habeas corpus. 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”).
40 339 U.S. at 789 n.14.

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of 2005 (DTA),41 stripped the Court of its jurisdiction to review habeas corpus
challenges by or on behalf of Guantanamo detainees whose petitions had already
been filed.42 The government’s argument that the petitioner had no rights conferred
by the Geneva Conventions that could be adjudicated in federal court likewise did not
persuade the Court to dismiss the case. Regardless of whether the Geneva
Conventions provide rights that are enforceable in Article III courts, the Court found
that Congress, by incorporating the “law of war” into UCMJ art. 21,43 brought the
Geneva Conventions within the scope of law to be applied by courts. The Court
disagreed that the Eisentrager case requires another result, noting that the Court there
had decided the treaty question on the merits based on its interpretation of the
Geneva Convention of 1929 and that the 1949 Conventions were drafted to reject that
interpretation.44 Justice Scalia, joined by Justices Thomas and Alito, dissented,
arguing that the DTA should be interpreted to preclude the Court’s review.
In response to the holding by the court below that Hamdan, as a putative
member of al Qaeda, was not entitled to any of the protections accorded by the
Geneva Conventions, the Court concluded that at the very least, Common Article 3
of the Geneva Conventions applies, even to members of al Qaeda, according to them
a minimum baseline of protections, including protection from the “passing of
sentences and the carrying out of executions without previous judgment pronounced
by a regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.”45 Although recognizing that
41 P.L. 109-148, §1005(e)(1) provides that “no court … shall have jurisdiction to hear or
consider … an application for … habeas corpus filed by … an alien detained … at
Guantanamo Bay.” The provision was not yet law when the appellate court decided against
the petitioner, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d 548 U.S. __
(2006). At issue was whether this provision applies to pending cases. The Court found that
the provision does not apply to Hamdan’s petition, but did not resolve whether it affects
other cases that fall under the DTA’s provisions regarding final review of Combatant Status
Review Tribunals. Slip op. at 19, and n.14.
42 Id. at 7. To resolve the question, the majority employed canons of statutory interpretation
supplemented by legislative history, avoiding the question of whether the withdrawal of the
Court’s jurisdiction would constitute a suspension of the Writ of Habeas Corpus, or whether
it would amount to impermissible “court-stripping.” Justice Scalia, joined by Justices Alito
and Thomas in his dissent, interpreted the DTA as a revocation of jurisdiction.
43 10 U.S.C. § 821 (“The provisions of [the UCMJ] conferring jurisdiction upon
courts-martial do not deprive military commissions, provost courts, or other military
tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or
by the law of war may be tried by military commissions, provost courts, or other military
tribunals.”). The Hamdan majority concluded that “compliance with the law of war is the
condition upon which the authority set forth in Article 21 is granted.” Hamdan, slip op. at
63.
44 Hamdan, slip op. at 63-65.
45 GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva
Conventions and applies to any “conflict not of an international character.” The majority
declined to accept the President’s interpretation of Common Article 3 as inapplicable to the
conflict with al Qaeda and interpreted the phrase “in contradistinction to a conflict between
(continued...)

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Common Article 3 “obviously tolerates a great degree of flexibility in trying
individuals captured during armed conflict” and that “its requirements are general
ones, crafted to accommodate a wide variety of legal systems,” the Court found that
the military commissions under M.C.O. No. 1 do not meet these criteria. In
particular, the military commissions are not “regularly constituted” because they
deviate too far, in the Court’s view, from the rules that apply to courts-martial,
without a satisfactory explanation of the need for such deviation.46
With respect to the authority to create the military commissions, the Court held
that any power to create them must flow from the Constitution and must be among
those “powers granted jointly to the President and Congress in time of war.”47 It
disagreed with the government’s position that Congress had authorized the
commissions either when it passed the Authorization to Use Military Force
(AUMF)48 or the DTA. Although the Court assumed that the AUMF activated the
President’s war powers, it did not view the AUMF as expanding the President’s
powers beyond the authorization set forth in the UCMJ. The Court also noted that
the DTA, while recognizing the existence of military commissions, does not
specifically authorize them. At most, these statutes “acknowledge a general
Presidential authority to convene military commissions in circumstances where
justified under the ‘Constitution and laws,’ including the law of war.”49
In addition to limiting military commissions to trials of offenders and offenses
that are by statute or by the law of war consigned to such tribunals, the UCMJ
provides limitations with respect to the procedural rules that may be employed.
Article 36 (10 U.S.C. § 836) authorizes the President to prescribe rules for “pretrial,
trial, and post-trial procedures, including modes of proof, for cases arising under this
chapter triable in courts-martial, military commissions and other military tribunals.”
Such rules are to “apply the principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United States district courts” insofar
as the President “considers practicable” but that “may not be contrary to or
inconsistent” with the UCMJ. In addition, rules made pursuant to this authority
“shall be uniform insofar as practicable.” The President had determined with respect
to the military commissions that “it is impracticable to apply the rules and principles
45 (...continued)
nations,” which the Geneva Conventions designate a “conflict of international character.”
Hamdan, slip op. at 67.
46 Id. at 70 (plurality opinion); Id. (Kennedy, J., concurring) at 10. Justice Stevens, joined
by Justices Ginsburg, Breyer, and Souter, further based their conclusion on the basis that
M.C.O. No. 1 did not meet all criteria of art. 75 of Protocol I to the Geneva Conventions of
1949, adopted in 1977 (Protocol I). While the United States is not party to Protocol I, the
plurality noted that many authorities regard it as customary international law.
47 Hamdan, slip op. at 27 (citing Congress’s powers to “declare War ... and make Rules
concerning Captures on Land and Water,” Art. I, §8, cl. 11, to “raise and support Armies,”
id., cl. 12, to “define and punish ... Offences against the Law of Nations,” id., cl. 10, and “To
make Rules for the Government and Regulation of the land and naval Forces,” id., cl. 14.).
48 P.L. 107-40, 115 Stat. 224 (2001).
49 Hamdan, slip op. at 30.

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of law that govern ‘the trial of criminal cases in the United States district courts’” but
made no determination with respect to the practicability of applying rules different
from those that apply in courts-martial.50
The Court interpreted article 36 to provide the President discretion to determine
which federal court rules need not be applied by various military tribunals51 due to
their impracticability. However, the Court read the uniformity requirement as
according less discretion to the President to determine what is practicable when
providing different rules for courts-martial, military commissions, and other military
tribunals.52 Unlike the requirement for rules to track closely with federal court rules,
which the President need follow only insofar as he deems practicable, the Court
reasoned, the uniformity requirement applies unless its application is demonstrably
impracticable. Thus, less deference was found owing, and the Court found that the
government had failed to demonstrate that circumstances make any courts-martial
rules impracticable for use in military commissions. Further, the Court found that
some of the rules provided in the Defense Department rules set forth in Military
Commission Order No. 1 (“M.C.O. No. 1”), in particular the provision allowing the
exclusion of the defendant from attending portions of his trial or hearing some of the
evidence against him, deviated substantially from the procedures that apply in courts-
martial in violation of UCMJ article 36.53
Department of Defense Rules for Military Commissions
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
safeguards for the accused, and establishes a review process. The Hamdan Court
found the rules insufficient to meet UCMJ standards and noted that the review
process was not sufficiently independent of the armed services to warrant the Court’s
abstention until the petitioner’s case was finally decided. M.C.O. No. 1 also contains
various mechanisms for safeguarding sensitive government information, which the
Court found problematic in that they could have permitted evidence to be withheld
from the accused but nevertheless considered by the military commission. The
Hamdan Court left open the possibility that the rules established by M.C.O. No. 1
would be valid if Congress were to explicitly approve them.
50 The government took the position that the “contrary to or consistent with” language
applies only with respect to parts of the UCMJ that make specific reference to military
commissions.
51 The term “military tribunal” in the UCMJ should be interpreted to cover all forms of
military courts, encompassing courts-martial as well as military commissions.
52 Hamdan, slip op. at 59.
53 Id at 61. Regarding the defendant’s right to be present during trial, the Court stated,
“[w]hether or not that departure technically is ‘contrary to or inconsistent with’ the terms
of the UCMJ, 10 U. S. C. §836(a), the jettisoning of so basic a right cannot lightly be
excused as ‘practicable.’”

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Other orders and instructions may also call for specific congressional approval
to remain valid. 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.”54
“Appropriate action” is not further defined, nor is any statutory authority cited for the
power.55 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.56 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.”57
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
54 M.C.I. No. 1 at § 4.C.
55 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
56 P.L. 107-40, 115 Stat. 224 (2001) (authorizing military force against those who “planned,
authorized, committed, [or] aided” the Sept. 11 attacks or who “harbored such ... persons”).
57 M.O. § 1(e) (finding such tribunals necessary to protect the United States and for effective
conduct of military operations).

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captured overseas or on U.S. territory, for violations of the law of war and “all other
offenses triable by military commissions.” Although 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. Justice Stevens, joined in that portion of the Hamdan
opinion by only three other Justices, undertook an inquiry of military commission
precedents to determine that “conspiracy” is not a valid charge. M.C.O. No. 1 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, but the Hamdan decision may
be interpreted to counsel against such an interpretation.
By statute, military tribunals may be used to try “offenders or offenses
designated by statute or the law of war.”58 There are only two statutory offenses for
which convening a military commission is explicitly recognized: aiding the enemy
and spying (in time of war).59 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.60
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,61 where civilian courts are closed.62 Such acts are not necessarily
58 10 U.S.C. § 821.
59 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 8, 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”).
60 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).
61 See WINTHROP, supra note 9, at 836. 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).
62 See id. (citing Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)). Winthrop notes that the
(continued...)

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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. Justice Stevens opined for the plurality that
military commissions in the present circumstances have jurisdiction only for
belligerent offenses and that martial law and military occupation courts will not serve
as precedent for jurisdiction purposes.63
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
war and thus may not be prosecuted for violating it.64 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.65 In the case of a non-international conflict, Common Article 3 of the
Geneva Conventions protects even non-POWs from the “passing of sentences and
the carrying out of executions without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.”66
62 (...continued)
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).
63 Hamdan, slip op. at 33-34.
64 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).
65 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.
66 GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva
Conventions and applies to any “conflict not of an international character.” The Hamdan
majority declined to accept the President’s interpretation of Common Article 3 as
inapplicable to the conflict with al Qaeda and interpreted the phrase “in contradistinction
to a conflict between nations,” which the Geneva Conventions designate a “conflict of
international character”. Hamdan, slip op. at 67. The Court did not expressly decide
whether the Global War on Terror (GWOT) is international or non-international for the
(continued...)

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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
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.67 The revision clarifies that the burden of proof is
on the prosecution, precludes liability for ex post facto crimes,68 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 war69 or triable by
military commissions.70 “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).71 Terrorism is also
66 (...continued)
purposes of the Geneva Convention, but merely that it is one or the other.
67 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.
68 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.”).
69 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; 11) Torture; 12) 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.
70 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.
71 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
(continued...)

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defined without reference to the statutory definition in title 18, U.S. Code.72
Although the Supreme Court long ago 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,73 it appears that the current Court will look more favorably on
prosecutions where charges are fully supported by precedent.
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 earlier 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.74
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 have eliminated the possibility that Taliban fighters could be
charged with “terrorism” in connection with combat activities; however, under the
DoD rules, such a fighter could still be charged with murder or destruction of
71 (...continued)
David Hicks. See United States v. Hicks, Charge Sheet, available online at
[http://www.defenselink.mil/news/Jun2004/d20040610cs.pdf] (last visited July 21, 2006).
72 18 U.S.C. § 2331 et seq. defines and punishes terrorism, providing exclusive jurisdiction
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).
73 327 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.”).
74 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.”

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property “by an unprivileged belligerent”75 for participating in combat, as long as the
commission finds that the accused “did not enjoy combatant immunity,” which,
according the to the instruction, is enjoyed only by “lawful combatants.”76 “Lawful
combatant” is not further defined. Inasmuch as the President had 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.77 It is unclear whether other defenses, such
as self-defense or duress, 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.”78
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.79 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,80 nor
75 M.C.I. No. 2 § 6(19).
76 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.
77 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
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
67, at 50-51 and 59. The revised version leaves ambiguous who might be a “lawful
combatant.”
78 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 67, at 69.
79 See WINTHROP, supra note 9, 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).
80 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
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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 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.81 Any military
commissions established to comply with Hamdan will likely have a better chance of
withstanding court scrutiny if they are supported by ample precedent or explicit
statutory definition.
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,”82 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.”83 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.84 The Supreme Court has not clarified
the scope of the “Global War on Terrorism” but seems to have demonstrated a
willingness to address the issue rather than deferring to the President’s interpretation.
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.
80 (...continued)
the conflict unilaterally withdraws its forces. See GERHARD VON GLAHN, LAW AMONG
NATIONS 722-730 (6th ed. 1992).
81 See Human Rights First, Trial Under Military Order, A Guide to the Final Rules for
Military Commissions (revised May 2006)[hereinafter “HRF”], available at
[http://www.humanrightsfirst.org/us_law/PDF/detainees/trials_under_order0604.pdf]] (last
visited July 21, 2006); Sadat, supra note 64, 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).
82 M.C.I. No. 2 § 5(C).
83 Id.
84 See SOURCEBOOK, supra note 67, 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).

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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.85 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.86
Composition and Powers. Under M.C.O. No. 1, the planned military
commissions consist of a panel of three to seven military officers as well as one or
more alternate members who had been “determined to be competent to perform the
duties involved” by the Secretary of Defense or his designee,87 and could include
reserve personnel on active duty, National Guard personnel in active federal service,
and retired personnel recalled to active duty. The rules also permit the appointment
of persons temporarily commissioned by the President to serve as officers in the
armed services during a national emergency.88 The presiding officer is required to
be a judge advocate in any of the U.S. armed forces, but not necessarily a military
judge.89
The presiding officer is vested with 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 saw fit. Presumably this power was to
include not only military and civilian attorneys but also any witnesses who had been
summoned under order of the Secretary of Defense pursuant to M.C.O. No. 1
§ 5(A)(5).90 The UCMJ authorizes military commissions to punish contempt with a
fine of $100, confinement for up to 30 days, or both.91 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.92 To the extent that
85 See id. at 38 (NACDL comments).
86 See id. at 98 (commentary of Eugene R. Fidell and Michael F. Noone).
87 M.C.O. No. 1 § 4(A)(3).
88 See 10 U.S.C. § 603, listed as reference (e) of M.C.O. No. 1.
89 M.C.O. No. 1 § 4(A)(4). See NIMJ, supra note 61, 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.
90 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”).
91 See 10 U.S.C. § 848.
92 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
(continued...)

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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 to address the issue of
impartiality. Under the rules as presently written, the President would 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 remain entirely under the control of the President or his designees,
who are vested with authority to write them, interpret them, enforce them, and amend
them at any time. All commission personnel other than the commission members
themselves are under the supervision of the Secretary of Defense, directly or through
the DoD General Counsel.93 The Secretary of Defense acted as the direct supervisor
of Review Panel members.94 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.95 DoD subsequently amended the instructions so that the Chief
Prosecutor reports to the Legal Advisor to the Appointing Authority, but as Justice
Kennedy noted in his concurring opinion, the concentration of authority in the
Appointing Authority remains a significant departure from the structural safeguards
Congress has built into the military justice system.96
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 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.97 The M.C.O. provides that only the procedures it prescribes or any
92 (...continued)
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.”
93 M.C.I. No. 6.
94 Id. § 3(A)(7).
95 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”).
96 Hamdan, slip op. at 11-16 (Kennedy, J. concurring).
97 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
(continued...)

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supplemental regulations that may be established pursuant to the M.O., and no others
shall govern the trials,98 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.99 The accused has no
opportunity to challenge the interpretation of the rules or seek redress in case of a
breach.100
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
defense,101 shall be presumed innocent until determined to be guilty beyond a
reasonable doubt by two thirds of the commission members,102 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.103
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.104
Open Hearing. The trials themselves are to 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.”105 DoD invited members of
97 (...continued)
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). However, the Supreme
Court rejected the finding as unsupported by the record and read the “uniformity” clause of
UCMJ art. 36 as requiring that military commissions must follow rules as close as possible
to those that apply in courts-martial.
98 M.C.O. No. 1 § 1.
99 Id. § 10.
100 Id.; M.C.I. No. 1 § 6 (Non-Creation of Right).
101 M.C.O. No. 1 § 5(A).
102 Id. §§ 5(B-C); 6(F).
103 Id. §§ 4(A)(5)(a); 5(K); 6B(3).
104 Id. §§ 5(B) and 6(B).
105 M.C.O. No. 1 § 6(D)(5).

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the press to apply for permission to attend the trials,106 although it initially informed
Human Rights Watch and other groups that logistical issues would likely preclude
their attendance.107 However, at the discretion of the Appointing Authority, “open
proceedings” need not necessarily be open to the public and the press.108 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.109
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.110 The
First Amendment right of public access extends to trials by court-martial,111 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.112 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.”113 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
106 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 July 24, 2006).
107 See Toni Locy, Human Rights Groups Denied Seats at Tribunals, USA TODAY, Feb. 24,
2004, at A3.
108 M.C.O. No. 1 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.
109 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).
110 See Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 602 (1982)(newspaper had
standing to challenge court order closing portions of criminal trial).
111 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).
112 See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984).
113 Pell v. Procunier, 417 U.S. 817, 822-24 (1974).

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to the public for other valid reasons, media access may be restricted for reasons of
operational necessity.114 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.115
Right to Counsel. Once charges are referred,116 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.117 The accused
does not have the right to refuse counsel in favor of self-representation.118 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.”119
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.120 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
114 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).
115 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).
116 In practice, some of the detainees have been assigned counsel upon their designation as
subject to the President’s M.O.
117 M.C.O. No. 1 § 4(C). M.C.I. No. 4 § 3(D) lists criteria for the “availability” of selected
detailed counsel.
118 But see Faretta v. California , 422 U.S. 806 (1975) (Const. Amend. VI guarantees the
right to self-representation).
119 M.C.I. No. 4 § 3(C).
120 See HRF, supra note 81, 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).

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seeking advice from experts in humanitarian law, for example.121 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.”122
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 detainees123) with at least a SECRET clearance,124 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
of court.125 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.126
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.127 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,
121 See SOURCEBOOK, supra note 67, at 136-37.
122 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.
123 See DoD Press Release, supra note 21.
124 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 July 24, 2006).
125 M.C.O. No. 1 § 4(C)(3)(b).
126 Id.; see Edgar, supra note 10 (emphasizing that national security may be invoked to close
portions of a trial irrespective of whether classified information is involved).
127 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.

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or a significant impairment of national security.”128 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.129 The M.C.O. further provides
that “in no circumstance shall accommodation of counsel be allowed to delay
proceedings unreasonably.”130 The Appointing Authority may revoke any attorney’s
eligibility to appear before any commission.131
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
the current rules and that lawyers who choose to do so are bound to contest the
unethical conditions.”132 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.133 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.134
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).135 In courts-martial, by contrast, the
accused has the right to view any documents in the possession of the Prosecution
128 M.C.I. No. 5, Annex B § II(J).
129 M.C.O. No 1 § 4(C)(1); see Torruella, supra note 114, 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).
130 M.C.O. No 1 § 4(A)(5)(c).
131 Id. § 4(A)(5)(b).
132 See NACDL Ethics Advisory Committee Opinion 03-04 (August 2003), available at
[http://www.nacdl.org] (Last visited July 24, 2006); Participation in Secret Military Terror
Trials Unethical, U.S. Lawyers Say, AP Aug. 2, 2003 (quoting incoming NACDL president
Barry Scheck).
133 See U.S. May Ease Tribunal Rules, NEWSDAY, Aug. 14, 2003, at A18.
134 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(1).pdf] (last visited July 24, 2006).
135 Id. § 5(E).

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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.136
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.137 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.”138 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
that unclassified summaries of protected information be prepared.139 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.140
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.141 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.142 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
136 See R.C.M. 701(a)(6); NIMJ, supra note 61, at 31-32.
137 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.
138 M.C.I. No. 4 § 5.
139 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 81, at 3.
140 Id.
141 Id. § 6(D)(5)(d).
142 Id. § 6(D)(2)(d).

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these provisions expressly apply to military commissions.143 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.144
It was 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.145 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.”146
Under UCMJ art. 39,147 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.”148 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
143 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.
144 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
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).
145 Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 167-68 (D.D.C. 2004).
146 Id. at 168.
147 10 U.S.C.§ 839.
148 M.C.O. No. 1 § 6(D)(1).

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United States [and other applicable statutes, regulations and rules].”149 In a court-
martial, relevant evidence may be excluded if its probative value is substantially
outweighed by other factors.150
“Probative value to a reasonable man” is a seemingly lax standard for
application to criminal trials.151 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
through the use of measures less severe than torture. In March 2006, DoD released
M.C.I. No. 10 prohibiting prosecutors from introducing, and military commissions
from admitting, statements established to have been made as a result of torture.
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.152 Statements made by the accused
during the sentencing phase appear to be subject to cross-examination.
Possible penalties include execution,153 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.154 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
149 Mil. R. Evid. 402.
150 Mil. R. Evid. 403.
151 See Torruella, supra note 114, at 715; ACTL, supra note 10, at 11.
152 See NIMJ, supra note 61, at 37 (citing United States v. Rosato, 32 M.J. 93, 96 (C.M.A.
1991)).
153 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.
154 M.C.I. No. 7 § 3(A).

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only be imposed upon a unanimous vote of the Commission.155 In courts-martial,
however, both conviction for any crime punishable by death and any death sentence
must be by unanimous vote.156 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.157 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.158 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
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.159 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.160 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
155 M.C.O. No. 1 § 6(F).
156 10 U.S.C. § 851.
157 See Laurence H. Tribe, Trial by Fury, THE NEW REPUBLIC, Dec. 10, 2001.
158 See Press Release, Military Commission Review Panel Members to be Designated and
Instruction Issued (Dec. 30, 2003), available at [http://www.defenselink.mil/releases/
2003/nr20031230-0822.html] (last visited July 24, 2006). 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.
159 The convening authority of a general court-martial is required to consider all matters
presented by the accused. 10 U.S.C. § 860.
160 M.C.I. No. 9 § 4(C).

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CRS-29
the UCMJ, the trial record of a military commission would be forwarded to the
appropriate JAG first.)161
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.162 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.163 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.164 It does not indicate what options the
review panel would have with respect to findings of Not Guilty.
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.165 However,
a defendant may petition a federal court for a writ of habeas corpus to challenge the
jurisdiction of the military commission.166
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
161 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).
162 10 U.S.C. § 859.
163 M.C.I. No. 9 § 4(C)(2)(a).
164 M.C.I. No. 9 § 4(C)(1)(b).
165 M.O. at § 7(b).
166 See Alberto R. Gonzales, Martial Justice, Full and Fair, NEW YORK 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).

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CRS-30
sentence have been approved).167 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.168 Although M.C.O. No. 1 provides that an
authenticated verdict169 of Not Guilty by the commission may not be changed to
Guilty,170 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.171
Another double jeopardy issue that might arise is related to the requirements for
the specification of charges.172 M.C.O. No. 1 does not provide a specific form for the
charges, and does not require an oath or signature.173 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.174 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
167 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).
168 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.
169 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.”
170 M.C.O. No. 1 § 6(H)(2).
171 The UCMJ does not permit rehearing on a charge for which the accused is found on the
facts to be not guilty.
172 See NIMJ, supra note 61, at 39.
173 See M.C.O. No. 1 § 6(A)(1).
174 M.O. § 7(e).

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CRS-31
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.
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
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.175 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.176 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.177 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
175 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).
176 See 10 U.S.C. § 836 (delegating authority to the President).
177 See M.C.O. No. 1 §. 1.

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CRS-32
States Constitution.” Finally, an act of Congress would appear necessary to enable
the federal courts to take appellate jurisdiction over the military commissions.178
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.
Three 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.
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.”179 The bill does not contain
geographical limitations as to jurisdiction; the use of military commissions to try
178 See In re Yamashita, 327 U.S. 1, 8 (1946); Ex parte Vallandigham, 68 (1 Wall.) 243
(1863).
179 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.

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CRS-33
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.180
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 Unprivileged Combatant Act of 2006, S. 3614, would authorize the
President to establish military commissions to try crimes involving international
terrorism defined in chapter 113B of title 18, U.S. Code, violations of the law of war
committed by unprivileged combatants, and other offenses triable by military
commissions or pursuant to M.C.I. No. 2. The U.S. Court of Military Appeals,
probably meaning the CAAF, would have jurisdiction to hear appeals, with the
possibility of Supreme Court review on writ of certiorari. The bill would also require
DoD to submit a report identifying all detainees at the Guantanamo Bay detention
facility whom the Department wishes to continue detaining as unprivileged
combatants and a summary of the evidence supporting the continuation of custody.
It would direct the Secretary of Defense to appoint a commission to review the
policy, procedures, and practice of the classification system for national security
information.
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, H.R. 3044, and S. 3614. 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.
180 See, e.g., Wong Wing v. United States, 163 U.S. 228 (1896)(aliens are entitled to due
process of law).

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CRS-34
Table 1. Comparison of Courts-Martial and Military Commission Rules
Guantanamo
Unprivileged
Military Commissions
General Courts
Military Commission
Detainees Procedures
Combatant Act of
Act of 2005
Martial
Order No. 1 (M.C.O.)
Act of 2005
2006
H.R. 3044
H.R. 3038
S. 3614
Authority
U.S. Constitution,
U.S. Constitution,
U.S. Constitution,
U.S. Constitution,
U.S. Constitution,
Article I, § 8.
Article II; Presidential
Article I, § 8.
Article I, § 8.
Article I, § 8.
Military Order of Nov.
13, 2001 (M.O).
Procedure
Rules are provided by
Rules are issued by the
The President may
The Secretary of
The Secretary of
the Uniform Code of
Secretary of Defense
prescribe rules of
Defense, in consultation
Defense prescribes
Military Justice
pursuant to the M.O.
evidence and procedure
with the Secretary of
rules of evidence and
(UCMJ), chapter 47,
No other rules apply
for trial by a military
State and the Attorney
procedure.
title 10, and the Rules
(presumably excluding
commission pursuant to
General, prescribes
§ 13(a)(2).
for Courts-Martial
the UCMJ).
art. 36, UCMJ. The
rules of evidence and
(R.C.M.) and the
§ 1.
President may further
procedure.
Military Rules of
The President has
delegate authority to
§ 5(c).
Evidence (Mil. R.
declared it
prescribe such rules to
Evid.), issued by the
“impracticable” to
the Secretary of
President pursuant to
employ procedures used
Defense.
art. 36, UCMJ.
in federal court,
Proposed 10 U.S.C. §
10 U.S.C. § 836.
pursuant to 10 U.S.C.
935a(i).
§ 836.
Jurisdiction over
Members of the armed
Individual subject to
Any person, not a
An individual, not a
Unprivileged
Persons
forces, cadets,
M.O., determined by
citizen of the United
United States person,
combatants, defined as
midshipmen, reservists
President to be:
States (accused of
lawful permanent
persons who have been
while on inactive-duty
1. a non-citizen, and
certain offenses).
resident, or POW, who
determined by a

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CRS-35
Guantanamo
Unprivileged
Military Commissions
General Courts
Military Commission
Detainees Procedures
Combatant Act of
Act of 2005
Martial
Order No. 1 (M.C.O.)
Act of 2005
2006
H.R. 3044
H.R. 3038
S. 3614
training, members of
2. a member of Al
Proposed 10 U.S.C. §
is accused of knowingly
Combatant Status
the National Guard or
Qaeda or person who
935a(b).
planning, authorizing,
Review Tribunal to be
Air National Guard
has engaged in acts
committing, aiding, or
“enemy combatants” or
when in federal service,
related to terrorism
abetting one or more
who are determined to
prisoners of war in
against the United
terrorist acts against the
be persons not entitled
custody of the armed
States, or who has
United States; or is
to POW status and to
forces, civilian
harbored one or more
accused of being part of
have taken up arms
employees
such individuals
or supporting forces
against the United
accompanying the
and is referred to the
engaged in armed
States or to have
armed forces in time of
commission by the
conflict against the
conspired with,
declared war, and
Appointing Authority.
United States.
assisted, or solicited
certain others, including
§ 3(A).
§ 2(b).
others to take up arms,
“persons within an area
or to have assisted or
leased by or otherwise
conspired with a group
reserved or acquired for
or individual “hostile to
the use of the United
the United States.
States.”
§§ 2(11) and 4.
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

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CRS-36
Guantanamo
Unprivileged
Military Commissions
General Courts
Military Commission
Detainees Procedures
Combatant Act of
Act of 2005
Martial
Order No. 1 (M.C.O.)
Act of 2005
2006
H.R. 3044
H.R. 3038
S. 3614
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
Offenses in violation of
Offenses against the
Violations of the law of
Criminal prosecutions
Offenses
punishable by the
the laws of war and all
law of war or any
war, international laws
for international
UCMJ; offenses subject
other offenses triable by
offense defined in
of armed conflict, and
terrorism offenses as
to trial by military
military commission.
United States law when
crimes against
defined under chap.
tribunal under the law
§ 3(B).
such offense is
humanity targeted
113B of title 18, U.S.
of war.
M.C.I. No. 2 clarifies
committed in
against United States
Code; violations of the
10 U.S.C. § 818.
that terrorism and
furtherance of
persons or residents.
laws of war committed
related crimes are
international terrorism
§ 5(b)
by unprivileged
“crimes triable by
as defined in 18 U.S.C.
combatants, and other
military commission.”
§ 2331.
offenses traditionally
Proposed 10 U.S.C. §
triable by military
935a(b).
commissions or
pursuant to M.C.I. No.
2.
§ 4.
Composition
A military judge and
From three to seven
From three to seven
Procedural rules must
At least three military
not less than five
members, as determined
members; in a cases
require that the tribunal
officers, at least one of
members.
by the Appointing
where the death penalty
be comprised of a
whom is a military

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CRS-37
Guantanamo
Unprivileged
Military Commissions
General Courts
Military Commission
Detainees Procedures
Combatant Act of
Act of 2005
Martial
Order No. 1 (M.C.O.)
Act of 2005
2006
H.R. 3044
H.R. 3038
S. 3614
R.C.M. 501.
Authority. § 4(A)(2).
is possible, the
military judge and not
judge.
commission must have
less than five members.
seven members.
§ 6(a)(20).
§ 6.
Proposed 10 U.S.C. §
935a(c)
Source: Congressional Research Service.

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CRS-38
Table 2. Comparison of Procedural Safeguards
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
Presumption
If the defendant fails to
The accused shall be
Procedural rules are
Procedural rules are
Presumption of innocence
of Innocence
enter a proper plea, a plea
presumed innocent until
required to provide that
required to provide that
is not expressly
of not guilty will be
proven guilty.
the accused must be
the accused be presumed
mentioned, although only
entered.
§ 5(B).
presumed innocent until
innocent until proven
those persons may be tried
R.C.M. 910(b).
Commission members
proven guilty on each
guilty, and not be found
who have been designated
Members of court martial
must base their vote for a
element of an offense.
guilty except upon proof
“enemy combatants” or
must be instructed that the
finding of guilty on
Proposed 10 U.S.C. §
beyond a reasonable
who are determined by a
“accused must be
evidence admitted at trial.
935a(i)(2).
doubt.
classification tribunal to
presumed to be innocent
§§ 5(C); 6(F).
§ 6(a)(14).
have taken up arms
until the accused’s guilt is
The presiding officer
against the United States
established by legal and
must determine the
or to have conspired with,
competent evidence
voluntary and informed
assisted, or solicited
beyond a reasonable
nature of any plea
others to take up arms, or
doubt.”
agreement submitted by
to have assisted or
R.C.M. 920(e).
the accused and approved
conspired with a group or
The accused shall be
by the Appointing
individual “hostile to the
properly attired in
Authority before
United States.”
uniform with grade
admitting it as stipulation
§ 2(11).
insignia and any
into evidence.
decorations to which
§ 6(A)(4).
entitled. Physical
restraint shall not be
imposed unless prescribed

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CRS-39
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
by the military judge.
R.C.M. 804.
Right to
Coerced confessions or
Not provided. Neither
Procedural rules must
Procedural rules must
Not addressed, although
Remain Silent
confessions made without
the M.O. nor M.C.O.
provide that evidence
provide that the accused
art. 31 UCMJ would
statutory equivalent of
requires a warning or bars
obtained through the use
not be compelled to
presumably apply to
Miranda warning are not
the use of statements
of torture will not be
confess guilt.
prohibit coerced confessions.
admissible as evidence.
made during military
admitted in evidence at
§ 6(a)(15).
10 U.S.C. § 831.
Persons subject to the
interrogation, or any
trial by a military
Presumably, art. 31
UCMJ are prohibited
coerced statement, from
commission. Proposed
UCMJ would also apply,
from compelling any
military commission
10 U.S.C. § 935a(i)(5-7).
insofar as it prohibits
individual to make a
proceedings.
Presumably, art. 31
service members from
confession
Art. 31(a), UCMJ (10
UCMJ would also apply,
compelling testimony,
10 U.S.C. § 831.
U.S.C. § 831) bars
insofar as it prohibits
but not as to its
The prosecutor must
persons subject to it from
service members from
exclusionary rule.
notify the defense of any
compelling any
compelling testimony,
10 U.S.C. § 831.
incriminating statements
individual to make a
but not as to its
Rules must also afford
made by the accused that
confession, but there does
exclusionary rule.
the accused “all necessary
are relevant to the case
not appear to be a remedy
10 U.S.C. § 831.
means of defense before
prior to the arraignment.
in case of violation. No
and after the trial.”
Motions to suppress such
person subject to the
§ 6(a)(11).
statements must be made
UCMJ may compel any
prior to pleading.
person to give evidence
Mil. R. Evid. 304.
before any military
tribunal if the evidence is
not material to the issue

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CRS-40
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
and may tend to degrade
him.
10 U.S.C. § 831.
Freedom from
“Evidence obtained as a
Not provided; no
Not provided.
Not provided.
Not provided.
Unreasonable
result of an unlawful search
exclusionary rule appears to
Searches &
or seizure ... is inadmissible
be available.
Seizures
against the accused ...”
However, monitored
unless certain exceptions
conversations between the
apply.
detainee and defense
Mil. R. Evid. 311.
counsel may not be
“Authorization to search”
communicated to persons
may be oral or written, and
involved in prosecuting the
may be issued by a military
accused or used at trial
judge or an officer in
M.C.O. No. 3.
command of the area to be
No provisions for
searched, or if the area is not
determining probable cause
under military control, with
or issuance of search
authority over persons
warrants are included.
subject to military law or the
law of war. It must be based
Insofar as searches and
on probable cause.
seizures take place outside
Mil. R. Evid. 315.
of the United States against
Interception of wire and oral
non-U.S. persons, the Fourth
communications within the
Amendment may not apply.
United States requires
United States v. Verdugo
judicial application in
Urquidez, 494 U.S. 259
accordance with 18 U.S.C.
(1990).
§§ 2516 et seq.

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CRS-41
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
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
M.C.O. 1 provides that the
Procedural rules are
Procedural rules must ensure
The defendant has the right
Effective
attaches during the
accused must be represented
required to provide that the
that the accused has a right
to be represented by counsel,
Counsel
investigation phase under art.
“at all relevant times”
accused be entitled to
to be represented by
who must be a U.S. citizen
32, UCMJ.
(presumably, once charges
“assistance of counsel at all
counsel.
admitted to a bar without any
10 U.S.C. § 832.
are approved until findings
stages of proceedings” and
§ 6(a)(6).
disciplinary history and who
The defendant has a right to
are final — but not for
to “adequate time and
is admitted to practice before
military counsel at
individuals who are detained
facilities available for the
a commission under rules to
government expense. The
but not charged) by detailed
preparation of his defense.”
be determined by the
defendant may choose
defense counsel.
The accused would also
Secretary of Defense. A
counsel, if that attorney is
§ 4(C)(4).
have the right to represent
defendant who is unable to
reasonably available, and
The accused is assigned a
himself , subject to the
obtain counsel is entitled to
may hire a civilian attorney
military judge advocate to
discretion of the presiding
have counsel appointed and
in addition to military
serve as counsel, but may
officer.
to be represented by such
counsel.
request to replace or
Proposed 10 U.S.C. §
counsel at every stage of the
10 U.S.C. § 838.
augment the detailed
935a(i)(8).
proceeding subsequent to
Appointed counsel must be
counsel with a specific
Trial and defense counsel
indictment.
certified as qualified and
officer, if that person is
would be detailed on the
§ 12(a).
may not be someone who
available.
same basis as such counsel
Counsel are not allowed to
has taken any part in the
§ 4(C)(3)(a).
are detailed for a general
confer with colleagues who
investigation or prosecution,
The accused may also hire a
court-martial under 10
do not have the appropriate
unless explicitly requested
civilian attorney who is a
U.S.C. § 827 (UCMJ art.
clearance, which includes at

---

CRS-42
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
by the defendant.
U.S. citizen, is admitted to
27), which delegates to the
least access to information
10 U.S.C. § 827.
the bar in any state, district,
“Secretaries involved” the
classified ‘secret.’
The attorney-client privilege
or possession, has a
authority to make
§ 15(b).
is honored.
SECRET clearance (or
regulations concerning the
Prospective counsel who are
Mil. R. Evid. 502.
higher, if necessary for a
appointment of counsel.
seeking a security counsel
particular case), and agrees
Presumably, the rules for
are entitled to timely
to comply with all
military commissions could
consideration for same.
applicable rules. The
differ from those for courts-
§ 15(c).
civilian attorney does not
martial. The right of the
replace the detailed counsel,
accused to select reasonably
and is not guaranteed access
available counsel, found in
to classified evidence or
10 U.S.C. § 838, would not
closed hearings.
be incorporated.
§ 4(C)(3)(b).
Proposed 10 U.S.C. §
Defense Counsel may
935a(e).
present evidence at trial and
Procedural rules would be
cross-examine witnesses for
required to provide that
the prosecution.
detailed defense counsel
§ 5(I).
may not be excluded from
The Appointing Authority
any trial proceeding or any
must order such resources
portion thereof.
be provided to the defense
Proposed 10 U.S.C. §
as he deems necessary for a
935a(i)(12).
“full and fair trial.”
§ 5(H).
Communications between
defense counsel and the
accused are subject to

---

CRS-43
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
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
Probably not applicable to
Procedural rules are
Procedural rules are
Not expressly addressed,
Indictment and
grand jury is explicitly
military commissions,
required to provide that the
required to provide a
although the entitlement to
Presentment
excluded in “cases arising in
provided the accused is an
accused is informed of the
preliminary proceeding
appointed counsel does not
the land or naval forces.”
enemy belligerent.
charges against him in a
within 30 days of detention,
attach until after indictment.
U.S. Constitution,
See Ex parte Quirin, 317
language he understands as
which may be continued for
§ 12(a).
Amendment V.
U.S. 1 (1942).
soon as practicable prior to
an additional 30 days for
Whenever an offense is
The Office of the Chief
trial.
good cause shown, to
alleged, the commander is
Prosecutor prepares charges
Proposed 10 U.S.C. §
determine whether there is
responsible for initiating a
for referral by the
935a(i)(3).
jurisdiction under over the
preliminary inquiry under
Appointing Authority.
There is no requirement for
person and the offenses
art. 32, UCMJ, and deciding
§ 4(B).
a preliminary inquiry.
charged.
how to dispose of the
There is no requirement for
§ 6(a)(18).
offense.
an impartial investigation
10 U.S.C. § 832; R.C.M.
prior to a referral of charges.

---

CRS-44
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
303-06.
The Commission may adjust
The accused must be advised
a charged offense in a
of the charges brought
manner that does not change
against him and has the right
the nature or increase the
to an attorney during the
seriousness of the charge.
investigation and hearing
§ 6(F).
proceedings.
10 U.S.C. § 832.
Right to Written
Charges and specifications
Copies of approved charges
No express requirement that
No express requirement that
Statement of
must be signed under oath
are provided to the accused
charges be written.
charges be written.
Charges
and made known to the
and Defense Counsel in
accused as soon as
English and another
practicable.
language the accused
10 U.S.C. § 830.
understands, if appropriate.
§ 5(A).
Right to be
The presence of the accused
The accused may be present
The procedural rules are
The procedural rules are
The defendant may be
Present at Trial
is required during
at every stage of trial before
required to provide that the
required to provide that the
excluded from portions of
arraignment, at the plea, and
the Commission unless the
accused has the “right to be
accused has the opportunity
the trial in order to protect
at every stage of the court-
presiding officer excludes
present at each stage of the
to be present at trial.
classified information or to
martial unless the accused
the accused because of
proceedings, unless he
§ 6(a)(5).
ensure the security of
waives the right by
disruptive conduct or for
engages in conduct that the
Rules must also provide that
witnesses or to permit
voluntarily absenting him or
security reasons or “any
presiding officer determines
the proceedings be made
witnesses to testify freely.
herself from the proceedings
other reason necessary for
to be disruptive, or the
simultaneously intelligible
§ 12(c).
after the arraignment or by
the conduct of a full and fair
presiding officer determines
for participants not
persisting in conduct that
trial.”
that exclusion of the accused
conversant in the English
justifies the trial judge in
§§ 4(A)(5)(b); 5(K); 6B(3).
is necessary to protect
language by translation or
ordering the removal of the
national security interests of
interpretation.
accused from the
the United States.”
§ 6(a)(3).

---

CRS-45
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
proceedings.
Proposed 10 U.S.C.
R.C.M. 801.
§ 935a(i)(12).
Prohibition
Courts-martial will not
Not provided, but may be
Not expressly provided, but
Procedural rules are to
Not provided.
against Ex Post
enforce an ex post facto law,
implicit in restrictions on
may be implicit in
prohibit conviction for an
Facto Laws or
including increasing amount
jurisdiction over offenses.
jurisdictional limitation to
alleged offense not based
Punishments
of pay to be forfeited for
See § 3(B). M.C.I. No. 2
“offenses against the law of
upon an act, offense, or
specific crimes.
§ 3(A) provides that “no
war or any offense defined
omission that was not an
U.S. v. Gorki, 47 M.J. 370
offense is cognizable in a
in United States law when
offense under law when it
(1997).
trial by military commission
such offense is committed in
was committed, and to
if that offense did not exist
furtherance of international
provide that the penalty for
prior to the conduct in
terrorism.”
an offense not be greater
question.”
than it was when the offense
was committed.
§ 6(a)(12-13).
Protection
Double jeopardy clause
The accused may not be
Procedural rules are
Not expressly provided. The
Not expressly provided. It
against Double
applies.
tried again by any
required to prohibit the trial
Secretary of Defense is not
appears that an innocent
Jeopardy
See Wade v. Hunter, 336 US
Commission for a charge
of an accused “a second
required to review verdicts
verdict may be appealed by
684, 688-89 (1949).
once a Commission’s
time for the same offense,”
of not guilty.
the government.
Art. 44, UCMJ prohibits
finding becomes final.
presumably including cases
§ 6(e).
§ 5.
double jeopardy, provides
(Jeopardy appears to attach
where the accused has been
for jeopardy to attach after
when the finding becomes
tried for the offense in
introduction of evidence.
final, at least with respect to
another jurisdiction,
10 U.S.C. § 844.
subsequent U.S. military
although it could be read to
General court-martial
commissions.)
prohibit only second trials

---

CRS-46
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
proceeding is considered to
§ 5(P).
by military commission.
be a federal trial for double
However, although a
Proposed 10 U.S.C.
jeopardy purposes. Double
finding of Not Guilty by the
§ 935a(i)(13).
jeopardy does not result from
Commission may not be
The Secretary of Defense
charges brought in state or
changed to Guilty, either the
does not have the discretion
foreign courts, although
reviewing panel, the
to disapprove a finding of
court-martial in such cases is
Appointing Authority, the
“not guilty,” and
disfavored.
Secretary of Defense, or the
consequently, such verdicts
U. S. v. Stokes, 12 M.J. 229
President may return the
would not be subject to
(C.M.A. 1982).
case for “further
appellate review.
Once military authorities
proceedings” prior to the
Proposed 10 U.S.C.
have turned service member
findings’ becoming final. If
§ 935a(k).
over to civil authorities for
a finding of Not Guilty is
trial, military may have
vacated and retried, double
waived jurisdiction for that
jeopardy may be implicated.
crime, although it may be
The order does not specify
possible to charge the
whether a person already
individual for another crime
tried by any other court or
arising from the same
tribunal may be tried by a
conduct.
military commission under
See 54 AM. JUR. 2D, Military
the M.O.
and Civil Defense §§ 227-
The M.O. reserves for the
28.
President the authority to
The government may only
direct the Secretary of
appeal orders or rulings that
Defense to transfer an
do not amount to a finding of
individual subject to the
not guilty.
M.O. to another
10 U.S.C. § 862.
governmental authority,

---

CRS-47
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
The judge advocate only
which is not precluded by
reviews cases in which there
the order from prosecuting
has been a finding of guilty.
the individual. This
10 U.S.C. § 864.
subsection could be read to
authorize prosecution by
federal authorities after the
individual was subject to
trial by military
commission.
M.O. § 7(e).
Speedy & Public
In general, accused must be
The Commission is required
The presiding officer would
Procedural rules would be
Once commission
Trial
brought to trial within 120
to proceed expeditiously,
be responsible for ensuring
required to provide that the
proceedings begin, the
days of the preferral of
“preventing any unnecessary
an expeditious trial.
proceeding and disposition
presiding officer is
charges or the imposition of
interference or delay.”
Proposed 10 U.S.C.
be expeditious.
responsible for ensuring an
restraint, whichever date is
§ 6(B)(2).
§ 935a(d).
§ 6(a)(9).
expeditious trial, ensuring
earliest.
Failure to meet a specified
Procedural rules are
Procedural rules are
that accomodation of counsel
R.C.M. 707(a).
deadline does not create a
required to provide for the
required to provide a
is never permitted to delay
Charges must be referred
right to relief.
right to a public trial,
preliminary proceeding
proceedings.
within eight days of arrest or
§ 10.
“unless the appointing
within 30 days of detention.
§ 6(a)(1)(E)(III).
confinement, unless it is not
The rules do not prohibit
authority or presiding
§ 6(a)(18).
Commissions are to be open
practicable to do so.
detention without charge, or
officer determines that a
Rules must also provide that
to the public unless the
10 U.S.C. § 835.
require charges to be
closed trial, or any portion
the trial be open and public,
government requests a
The right to a public trial
brought within a specific
thereof, is necessary to the
including public availability
closed hearing to avoid
applies in courts-martial but
time period.
national security of the
of the transcripts of the trial
disclosure of classified
is not absolute.
Proceedings “should be
United States.”
and the pronouncement of
information.
R.C.M. 806.
open to the maximum extent
Proposed 10 U.S.C.
judgment, consistent with
§ 12(c).
The military trial judge may
possible,” but the
§ 935a(i)(4).
the need to protect
The presiding officer has the
exclude the public from
Appointing Authority has
participants and the need to
authority to close hearings

---

CRS-48
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
portions of a proceeding for
broad discretion to close
protect sensitive government
for any reason necessary for
the purpose of protecting
hearings, and may exclude
information, the publication
the conduct of a full and fair
classified information if the
the public or accredited
of which is certified to pose
trial.
prosecution demonstrates an
press from open
a risk of identifiable harm to
§ 6(a)(1)(E)(I).
overriding need to do so and
proceedings.
the prosecution of military
the closure is no broader
§ 6(B)(3).
objectives; significant,
than necessary.
identifiable harm to
United States v. Grunden, 2
intelligence sources or
M.J. 116 (CMA 1977).
methods; or
substantial risk that such
evidence could be used for
planning future terrorist
attacks.
§ 6(a)(16); § 6(c-d).
Burden &
Members of court martial
Commission members may
Procedural rules must
Procedural rules must
A guilty verdict must be
Standard of
must be instructed that the
vote for a finding of guilty
provide that “the burden of
provide that the accused be
supported by a finding of
Proof
burden of proof to establish
only if convinced beyond a
proof shall be upon the
“presumed innocent until
guilt beyond a reasonable
guilt is upon the government
reasonable doubt, based on
prosecution to prove each
proven guilty,” and “not be
doubt by all three members
and that any reasonable
evidence admitted at trial,
element of an offense
found guilty except upon
of the commission.
doubt must be resolved in
that the accused is guilty.
beyond a reasonable doubt.”
proof beyond a reasonable
§ 13(a)(1).
favor of the defendant.
§§ 5(C); 6(F).
Proposed 10 U.S.C.
doubt.”
R.C.M. 920(e).
The burden of proof of guilt
§ 935a(i)(2).
§ 6(a)(14).
is on the prosecution,
Under the rules, the tribunal
§ 5(C); however, M.C.I. No.
would be required to apply
2 states that element of
“reasonable rules of

---

CRS-49
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
wrongfulness of an offense
evidence designed to ensure
is to be inferred absent
admission only of reliable
evidence to the contrary.
information or material with
M.C.I. No. 2 § 4(B).
probative value.”
§ 6(a)(10).
Privilege
No person subject to the
The accused is not required
Procedural rules must
Procedural rules must
Not provided.
Against Self-
UCMJ may compel any
to testify, and the
provide that the accused
provide that the accused
Incrimination
person to answer
commission may draw no
may not be compelled to
“not be compelled to
incriminating questions.
adverse inference from a
testify or present evidence
confess guilt or testify
10 U.S.C. § 831(a).
refusal to testify.
against himself, that no
against himself.”
Defendant may not be
§ 5(F).
adverse inference will be
§ 6(a)(15).
compelled to give testimony
However, there is no rule
drawn against him for
There is no express
that is immaterial or
against the use of coerced
declining to testify.
requirement for a rule
potentially degrading.
statements as evidence.
Proposed 10 U.S.C.
prohibiting adverse
10 U.S.C. § 831(c).
There is no specific
§ 935a(i)(5-7).
inferences against an
No adverse inference is to be
provision for immunity of
Presumably, art. 31 UCMJ
accused for not testifying.
drawn from a defendant’s
witnesses to prevent their
would also apply, insofar as
Presumably, art. 31 UCMJ
refusal to answer any
testimony from being used
it prohibits service members
would also apply, insofar as
questions or testify at court-
against them in any
from compelling testimony,
it prohibits service members
martial.
subsequent legal
but not as to its exclusionary
from compelling testimony,
Mil. R. Evid. 301(f).
proceeding, however, under
rule.
but not as to its exclusionary
Witnesses may not be
18 U.S.C. §§ 6001 et seq., a
10 U.S.C. § 831.
rule.
compelled to give testimony
witness required by a
Immunity for witnesses
10 U.S.C. § 831.
that may be incriminating
military tribunal to give
would presumably be
Immunity for witnesses
unless granted immunity for
incriminating testimony is
provided for in 18 U.S.C.
would presumably be
that testimony by a general
immune from prosecution in
§§ 6001 et seq.
provided for in 18 U.S.C.
court-martial convening
any criminal case, other than
§§ 6001 et seq.

---

CRS-50
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
authority, as authorized by
for perjury, giving false
the Attorney General, if
statements, or otherwise
required.18 U.S.C. § 6002;
failing to comply with the
R.C.M. 704.
order.
18 U.S.C. §§6002; 6004.
Right to
Hearsay rules apply as in
Defense Counsel may cross-
Procedural rules are
Procedural rules are
The prosecution is required
Examine or
federal court.
examine the Prosecution’s
required to provide the
required to provide the
to provide the defense
Have Examined
Mil. R. Evid. 801 et seq.
witnesses who appear before
accused the right to present
accused access to all of the
counsel with access to
Adverse
A duly authenticated
the Commission.
evidence and to
evidence supporting each
evidence it intends to
Witnesses
deposition, or video or
§ 5(I).
cross-examine each witness
alleged offense be given to
introduce at trial as well as
audio-taped testimony, may
However, the Commission
and to have access to all
the accused, unless such
exculpatory evidence that is
be used in lieu of a live
may also permit witnesses to
evidence that trial counsel
information is certified by
or should be known to the
witness only if the witness is
testify by telephone or other
intends to offer at trial.
the head of the appropriate
government.
beyond 100 miles from the
means not requiring the
Proposed 10 U.S.C.
agency to pose a risk of
§ 12(b).
place or trial, the witness is
presence of the witness at
§ 935a(i)(9-11).
identifiable harm to the
unavailable due to death,
trial, in which case cross-
There is no express
prosecution of military
health reasons, military
examination may be
provision for the use of
objectives; significant,
necessity, nonamenability to
impossible.
evidence where a witness is
identifiable harm to
process, or other reasonable
§ 6(D)(2).
unavailable (hearsay),
intelligence sources or
cause, or the whereabouts of
In the case of closed
however, UCMJ art. 49
methods; or substantial risk
the witness is unknown.
proceedings or classified
expressly applies to military
that such evidence could be
In capital cases, sworn
evidence, only the detailed
commissions as it does for
used for planning future
depositions may not be used
defense counsel may be
general courts-martial.
terrorist attacks.
in lieu of witness, unless
permitted to participate.
10 U.S.C. § 849.
§ 6(a)(4); § 6(b-c).
court-martial is treated as
Hearsay evidence is
There is no provision for
Rules must also provide the
non-capital or it is
admissible as long as the
preventing access to
accused the opportunity to
introduced by the defense.
Commission determines it
classified evidence to be
respond to the evidence
10 U.S.C. § 849.
would have probative value
used against the accused,
supporting each alleged

---

CRS-51
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
The military judge may
to a reasonable person.
although the accused may be
offense; to obtain
allow the government to use
§ 6(D)(1).
prohibited from attending
exculpatory evidence from
a summary of classified
The Commission may
classified proceedings.
the prosecution; and to
information, unless the use
consider testimony from
Proposed 10 U.S.C.
present exculpatory
of the classified information
prior trials as well as sworn
§935a(i)(12).
evidence.
itself is necessary to afford
and unsworn written
§ 6(a)(7).
the accused a fair trial.
statements, apparently
Rules must further provide
Mil. R. Evid. 505.
without regard to the
the accused the opportunity
availability of the declarant,
to confront and
in apparent contradiction
cross-examine adverse
with 10 U.S.C. § 849.
witnesses and to offer
§ 6(D)(3).
witnesses.
§ 6(a)(8).
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.”
§ 6(a)(10).

---

CRS-52
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
Right to
Defendants before court-
The accused may obtain
Procedural rules are
Rules must provide the
The prosecution is required
Compulsory
martial have the right to
witnesses and documents “to
required to provide the
accused the opportunity to
to provide the defense
Process to
compel appearance of
the extent necessary and
accused the equal
offer witnesses, but it is
counsel with access to
Obtain
witnesses necessary to their
reasonably available as
opportunity to obtain
unclear whether there is any
exculpatory evidence that is
Witnesses
defense.
determined by the Presiding
witnesses and other
authority to compel
or should be known to the
R.C.M. 703.
Officer.”
evidence.
witnesses to appear.
government.
Process to compel witnesses
§ 5(H).
Proposed 10 U.S.C.
§ 6(a)(8).
§ 12(b).
in court-martial cases is to be
The Commission has the
§ 935a(i)(10).
similar to the process used in
power to summon witnesses
The authority of military
federal courts.
as requested by the Defense.
commissions to subpoena
10 U.S.C. § 846.
§ 6(A)(5).
witnesses not subject to the
The power to issue
UCMJ is not clearly stated
subpoenas is exercised by
in the UCMJ, but those
the Chief Prosecutor; the
witnesses who are “duly
Chief Defense Counsel has
subpoenaed” and refuse to
no such authority. M.C.I.
appear or testified are
Nos. 3-4.
subject to trial in federal
court.
10 U.S.C. § 847.
Right to Trial
A qualified military judge is
The presiding officer is
Not expressly provided.
Procedural rules must
The Secretary of Defense
by Impartial
detailed to preside over the
appointed directly by the
Article 37, UCMJ, prohibits
require that the tribunal be
appoints military judges to
Judge
court-martial. The
Appointing Authority,
any unlawful attempt by a
“independent and
serve on panels and to carry
convening authority may not
which decides all
person subject to the UCMJ
impartial.”
out other duties under the
prepare or review any report
interlocutory issues. There
to coerce or influence the
§ 6(a)(1).
Act, presumably including
concerning the performance
do not appear to be any
action of any military
serving on status
or effectiveness of the
special procedural
tribunal.
determination tribunals.
military judge.
safeguards to ensure
10 U.S.C. § 837.
§ 6(a)(1)(A).

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CRS-53
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
10 U.S.C. § 826.
impartiality, but challenges
Article 37, UCMJ, which
Article 37, UCMJ, prohibits
for cause have been
prohibits any unlawful
unlawful influence of courts-
permitted.
attempt by a person subject
martial through
§ 4(A)(4).
to the UCMJ to coerce or
admonishment, censure, or
The presiding judge, who
influence the action of any
reprimand of its members by
decides issues of
military tribunal, would
the convening authority or
admissibility of evidence,
presumably apply.
commanding officer, or any
also votes as part of the
10 U.S.C. § 837.
unlawful attempt by a person
commission on the finding
subject to the UCMJ to
of guilt or innocence.
coerce or influence the
Article 37, UCMJ, provides
action of a court-martial or
that no person subject to the
convening authority.
UCMJ “may attempt to
10 U.S.C. § 837.
coerce or, by any
Military defendants have the
unauthorized means,
opportunity to challenge the
influence the action of a
military judge for cause.
court-martial or any other
10 U.S.C. § 41.
military tribunal or any
member thereof, in reaching
the findings 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

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CRS-54
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
panel. M.C.I. No. 9 § 4(F).
Right to Trial
A military accused has no
Military tribunals probably
Military commissions are to
Procedural rules must
Each commission is to have
By Impartial
Sixth Amendment right to a
do not require a jury trial.
have three to seven
require that the tribunal be
three military officers, with a
Jury
trial by petit jury.
See Ex Parte Quirin, 317
commissioned officers to
“independent and
military judge serving as
Ex Parte Quirin, 317 U.S. 1,
U.S. 1, 39-40 (1942) (dicta).
serve as members, but
impartial.”
presiding officer, as well as
39-40 (1942) (dicta).
The commission members
safeguards concerning their
§ 6(a)(1).
one or two alternate
However, “Congress has
are appointed directly by the
impartiality are not
members.
provided for trial by
Appointing Authority.
expressly addressed.
§ 6.
members at a court-martial.”
While the Commission is
Proposed 10 U.S.C.
The role of non-presiding
United States v. Witham, 47
bound to proceed
§ 935a(c).
panel members is not set
MJ 297, 301 (1997); 10
impartially, there do not
forth in detail, nor are
U.S.C. § 825.
appear to be any special
safeguards to address
The Sixth Amendment
procedural safeguards
impartiality.
requirement that the jury be
designed to ensure their
impartial applies to court-
impartiality. However,
martial members and covers
defendants have
not only the selection of
successfully challenged
individual jurors, but also
members for cause.
their conduct during the trial
§ 6(B).
proceedings and the
subsequent deliberations.
United States v. Lambert, 55
M.J. 293 (2001).
Military defendants have the
opportunity to exercise
peremptory challenge and
challenge panel members for

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CRS-55
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
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 Appeal
The appropriate Court of
A review panel appointed by
A person found guilty by
The procedural rules must,
The U.S. Court of Military
to Independent
Criminal Appeals for the
the Secretary of Defense
military commission and
“at a minimum, allow for
Appeals would have
Reviewing
military service involved
reviews the record of the
sentenced to death or
review of the proceedings of
jurisdiction to hear appeals
Authority
automatically reviews all
trial in a closed conference,
imprisonment for more than
the tribunals, and the
of final decisions, with
convictions that result in
disregarding any procedural
five years would have a
convictions and sentences of
Supreme Court review
sentences of sufficient
variances that would not
right to a review of that
such tribunals, by the
available by certiorari.
severity, unless the
materially affect the
finding and sentence, with
[CAAF].” The Supreme
§ 5.
defendant waives such
outcome of the trial, and
respect to issues of law, by
Court would have
(What was formerly called
review. 10 U.S.C. § 622 The
recommends its disposition
the CAAF, and may appeal
jurisdiction to grant
the U.S. Court of Military
defendant may seek
to the Secretary of Defense.
an adverse ruling there to
certiorari in such cases.
Appeals is now known as the

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CRS-56
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
discretionary review by the
Although the Defense
the Supreme Court on a writ
§ 6(e)(2-3).
Court of Appeals for the
Court of Appeals for the
Counsel has the duty of
of certiorari.
The bill would not explicitly
Armed Forces).
Armed Forces (CAAF), 10
representing the interests of
Proposed 10 U.S.C.
alter the jurisdiction of the
U.S.C. § 867, and, upon
the accused during any
§ 935a(k).
CAAF.
losing an appeal on the
review process, the review
10 U.S.C. § 867.
merits at the CAAF, may
panel need not consider
The procedural rules must
seek review from the
written submissions from
provide that the right to
Supreme Court on a writ of
the Defense, nor does there
habeas corpus may not be
certiorari.
appear to be an opportunity
infringed.
28 U.S.C. § 1259.
to rebut the submissions of
§ 6(e)(19).
The writ of habeas corpus
the prosecution. If the
provides the primary means
majority of the review panel
by which those sentenced by
forms a “definite and firm
military court, having
conviction that a material
exhausted military appeals,
error of law occurred,” it
can challenge a conviction or
may return the case to the
sentence in a civilian court.
Appointing Authority for
The scope of matters that a
further proceedings.
court will address is more
§ 6(H)(4).
narrow than in challenges of
The review panel
federal or state convictions.
recommendation does not
Burns v. Wilson, 346 U.S.
appear to be binding. The
137 (1953).
Secretary of Defense may
serve as Appointing
Authority and as the final
reviewing authority, as
designated by the President.
Although the M.O specifies

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CRS-57
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
that the individual is not
privileged to seek any
remedy in any U.S. court or
state court, the court of any
foreign nation, or any
international tribunal, M.O.
§ 7(b), Congress established
jurisdiction in the Court of
Appeals for the D.C. Circuit
to hear challenges to final
decisions of military
commissions. Detainee
Treatment Act of 2005.
Protection
Death may only be adjudged
The death sentence may be
Three quarters of members
The UCMJ requirements for
Not addressed.
against
for certain crimes where the
imposed only on the
present for deliberation must
the imposition of the death
Excessive
defendant is found guilty by
unanimous vote of a seven-
concur in order to issue a
penalty apply in any case in
Penalties
unanimous vote of court-
member panel.
finding of guilty, except in
which a tribunal is requested
martial members present at
§ 6(F).
the case the death penalty, in
to adjudge the death penalty.
the time of the vote. Prior to
The commission may only
which case the concurrence
§ 6(b).
arraignment, the trial counsel
impose a sentence that is
of all seven members
must give the defense written
appropriate to the offense
present is required.
notice of aggravating factors
for which there was a
Proposed 10 U.S.C.
the prosecution intends to
finding of guilty, including
§ 935a(c).
prove.
death, imprisonment, fine or
The death sentence would
R.C.M. 1004.
restitution, or “other such
be available only if the
A conviction of spying
lawful punishment or
accused has been found
during time of war under
condition of punishment as
guilty of spying or an
article 106, UCMJ, carries a
the commission shall
offense causing the death of

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CRS-58
Military Commissions
Guantanamo Detainees
Unprivileged Combatant
Military Commission
General Courts-Martial
Act of 2005
Procedures Act of 2005
Act of 2006
Order No. 1 (M.C.O.)
H.R. 3044
H.R. 3038
S. 3614
mandatory death penalty.
determine to be proper.”
one or more persons, where
10 U.S.C. § 906.
§ 6(G).
such offense was committed
Cruel and unusual
If the Secretary of Defense
after the accused attained
punishment, including
has the authority to conduct
the age of eighteen years. A
flogging, or branding or
the final review of a
sentence of death would
otherwise branding the body
conviction and sentence, he
require approval by the
is prohibited against persons
may mitigate, commute,
President.
subject to the UCMJ.
defer, or suspend, but not
Proposed 10 U.S.C.
10 U.S.C. § 855.
increase, the sentence.
§ 935a(h).
The convicted person may
However, he may
appeal a sentence, and the
disapprove the findings and
sentence may be mitigated or
return them for further
commuted, but not
action by the military
increased, by the judge
commission.
advocate reviewing the case.
§ 6(H).
10 U.S.C. §§ 864, 866, 867.
Source: Congressional Research Service

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