Order Code RL33688
The Military Commissions Act of 2006:
Analysis of Procedural Rules and Comparison
with Previous DOD Rules and the
Uniform Code of Military Justice
Updated January 26, 2007
Jennifer K. Elsea
Legislative Attorney
American Law Division

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The Military Commissions Act of 2006: Analysis of
Procedural Rules and Comparison with Previous DOD
Rules and the Uniform Code of Military Justice
Summary
On 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 that one of the defendants could not be tried under
the rules established by the Department of Defense (DOD). The D.C. Circuit Court
of Appeals reversed that decision in Rumsfeld v. Hamdan, but the Supreme Court
granted review and reversed the decision of the Court of Appeals. To permit military
commissions to go forward, Congress approved the Military Commissions Act of
2006 (MCA), conferring authority to promulgate rules that depart from the strictures
of the Uniform Code of Military Justice (UCMJ) and possibly U.S. international
obligations. The Department of Defense published regulations to govern future
military commissions pursuant to the MCA, but trials have not yet commenced.
This report provides a background and analysis comparing military commissions
as envisioned under the MCA to the rules that had been established by the
Department of Defense (DOD) for military commissions and to general military
courts-martial conducted under the UCMJ. After reviewing the history of the
implementation of military commissions in the “global war on terrorism,” the report
provides an overview of the procedural safeguards to be implemented pursuant to the
MCA. Finally, the report provides two tables comparing the MCA with regulations
that had been issued by the Department of Defense pursuant to the President’s
Military Order with standard procedures for general courts-martial under the Manual
for Courts-Martial. The first table describes the composition and powers of the
military tribunals, as well as their jurisdiction. The second chart, which compares
procedural safeguards required by the MCA with those that had been incorporated
in the DOD regulations and the 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, 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
Hamdan v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Military Commissions Act of 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subject-Matter Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Temporal and Spatial Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Composition and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Procedures Accorded the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Open Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Right to be Present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Right to Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Evidentiary Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Admissibility of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Coerced Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Post-Trial Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Review and Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Protection against Double Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
List of Tables
Table 1. Comparison of Courts-Martial and Military Commission Rules . . . . . 30
Table 2. Comparison of Procedural Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . 34

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The Military Commissions Act of 2006:
Analysis of Procedural Rules and
Comparison with Previous DOD Rules 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 then 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 creating jurisdiction in
the Court of Appeals for the District of Columbia Circuit to hear appeals of final
decisions of military commissions. The Supreme Court, in Hamdan v. Rumsfeld,4
overturned a decision by the D.C. Circuit that had upheld the military commissions,
holding instead that although Congress has authorized the use of military
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 In response, Congress passed the Military Commissions Act of
2006 (MCA) to authorize military commissions and establish procedural rules that
are modeled after, but depart from in some significant ways, the UCMJ. The
1 Rasul v. Bush, 542 U.S. 466 (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, and CRS Report RS22466, Hamdan v. Rumsfeld: Military
Commissions in the “Global War on Terrorism,” both 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).
4 Hamdan v. Rumsfeld, 548 U.S. __ (2006), rev’g 415 F.3d 33 (D.C. Cir. 2005).
5 10 U.S.C. § 801 et seq.

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Department of Defense has issued regulations for the conduct of military
commissions pursuant to the MCA,6 but trials have not yet commenced.
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.7 Past military
commissions trying enemy belligerents for war crimes directly applied the
international law of war, without recourse to domestic criminal statutes, unless such
statutes were declaratory of international law.8 Historically, military commissions
have applied the same set of procedural rules that applied in courts-martial.9 By
statute, military tribunals may be used to try “offenders or offenses designated by
statute or the law of war.”10 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,11 it is unclear whether the current Court would
adopt that proposition or look more closely to precedent.
The President’s Military Order establishing military commissions to try
suspected terrorists was 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
6 Department of Defense, The Manual for Military Commissions, January 18, 2007,
available at [http://www.defenselink.mil/pubs/pdfs/ The%20Manual%20for%20Military%
20Commissions.pdf]
7 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.
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).
10 10 U.S.C. § 821. There are only two statutory offenses for which convening a military
commission is explicitly recognized: aiding the enemy and spying (in time of war). 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”).
11 327 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.”).

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CRS-3
Constitution as well as their rights under international law, thereby undercutting the
legitimacy of any verdicts rendered by the tribunals. The Administration established
rules prescribing detailed procedural safeguards for the tribunals in Military
Commission Order No. 1 (“M.C.O. No. 1”), issued in March 2002 and amended in
2005.12 These rules 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 did not go far enough and called for the checks and balances of a
separate rule-making authority and an independent appellate process.13 Critics also
noted that the rules did not address the issue of indefinite detention without charge,
as appeared to be possible under the original M.O.,14 or that the Department of
Defense may continue to detain persons who have been cleared by a military
commission.15 The Pentagon has reportedly 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.16
President Bush determined that twenty of the detainees at the U.S. Naval Station
in Guantánamo Bay were subject to the M.O., and 10 were subsequently charged for
trial before military commissions.17
12 Reprinted at 41 I.L.M. 725 (2002). A revision was issued Aug. 31, 2005. The
Department of Defense (DOD) subsequently released ten “Military Commission
Instructions” (“M.C.I. No. 1-10”) to elaborate on the set of procedural rules to govern
military tribunals. The instructions set forth the elements of some crimes to be tried by
military commission, established guidelines for civilian attorneys, and provided other
administrative guidance and procedures for military commissions.
13 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).
14 The Administration has not explicitly used this authority; instead, it characterizes the
prisoners as “enemy combatants” detained pursuant to the law of war. See, e.g., Response
of the United States to Request for Precautionary Measures - Detainees in Guantanamo Bay,
Cuba to the Inter-American Commission on Human Rights, Organization of American States
25 (2002)(“It is humanitarian law, and not human rights law, that governs the capture and
detention of enemy combatants in an armed conflict.”)
15 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).
16 See Neil A. Lewis, Two Prosecutors Faulted Trials For Detainees, NY TIMES, Aug. 1,
2005, at A1.
17 See Press Release, Department of Defense, President Determines Enemy Combatants
Subject to His Military Order (July 3, 2003), available at [http://www.defenselink.mil/
(continued...)

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Hamdan v. Rumsfeld
Salim Ahmed Hamdan was captured in Afghanistan and charged with
conspiracy for having allegedly worked for Osama Bin Laden.18 He challenged the
lawfulness of the military commission under the UCMJ19 and claimed the right to be
treated as a prisoner of war under the Geneva Conventions.20 A ruling in his favor
at the district court was reversed by the D.C. Circuit Court of Appeals, which, while
rejecting the government’s argument that the federal courts had no jurisdiction to
interfere in ongoing commission proceedings, agreed with the government that the
Geneva Conventions are not judicially enforceable;21 that even if they were, Hamdan
was not entitled to their protections; and that in any event, the military commission
would qualify as a “competent tribunal” for challenging the petitioner’s non-POW
status. The appellate court did not accept the government’s argument that the
President has inherent authority to create military commissions without any
authorization from Congress, but found such authority in the Authorization to Use
Military Force (AUMF),22 read together with UCMJ arts. 21 and 36.23
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 of 2005 (DTA),24 stripped the
17 (...continued)
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).
18 344 F.Supp.2d 152 (D. D.C. 2004), rev’d 415 F.3d 33 (D.C. Cir. 2005), rev’d 548 U.S.
__ (2006). For a more thorough discussion of the Hamdan case, see CRS Report RS22466,
Hamdan v. Rumsfeld: Military Commissions in the ‘Global War on Terrorism,’ by Jennifer
K. Elsea.
19 10 U.S.C. §§ 801 et seq.
20 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”).
21 Rumsfeld v. Hamdan, 415 F.3d 33, 39-40 (D.C. Cir. July 15, 2005).
22 Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).
23 Hamdan, 415 F.3d at 37.
24 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 126 S.Ct. 2749
(continued...)

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Court of its jurisdiction to review habeas corpus challenges by or on behalf of
Guantanamo detainees whose petitions had already been filed.25 In addition,
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. 21,26 brought the Geneva Conventions within the scope of law to be
applied by courts.27 Further, the Court found 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.”28
The Court concluded that, although 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 military commissions under M.C.O. No. 1 did not meet these
criteria. In particular, the military commissions were not “regularly constituted”
because they deviated too far, in the Court’s view, from the rules that apply to courts-
24 (...continued)
(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. For an overview of issues related to the
jurisdiction over habeas corpus, see CRS Report RL33180, Enemy Combatant Detainees:
Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and Kenneth Thomas.
25 Hamdan, slip op. 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.
26 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.
27 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.
Hamdan, slip op. at 63-65.
28 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
nations,” which the Geneva Conventions designate a “conflict of international character.”
Hamdan, slip op. at 67.

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martial, without a satisfactory explanation of the need for such deviation.29 Justice
Scalia, joined by Justices Thomas and Alito, dissented, arguing that the DTA should
be interpreted to preclude the Court’s review.
The Military Commissions Act of 2006
In response to the Hamdan decision, Congress enacted the Military
Commissions Act of 2006 (“MCA”) to grant the President express authority to
convene military commissions to prosecute those fitting the definition under the
MCA of “alien unlawful enemy combatants.” The MCA eliminates the requirement
for military commissions to conform to either of the two uniformity requirements in
article 36, UCMJ. Instead, it establishes a new chapter 47a in title 10, U.S. Code and
excepts military commissions under the new chapter from the requirements in article
36.30 It provides that the UCMJ “does not, by its terms, apply to trial by military
commissions except as specifically provided in this chapter.” While declaring that
the new chapter is “based upon the procedures for trial by general courts-martial
under [the UCMJ],” it establishes that “[t]he judicial construction and application
of [the UCMJ] are not binding on military commissions established under this
chapter.”31 It expressly exempts the new military commission from UCMJ articles
10 (speedy trial), 31 (self-incrimination warnings) and 32 (pretrial investigations),
and amends articles 21, 28, 48, 50(a), 104, and 106 of the UCMJ to except military
commissions under the new chapter.32 Other provisions of the UCMJ are to apply
to trial by military commissions under the new chapter only to the extent provided
therein.33
Jurisdiction
The President’s M.O. was initially criticized by some as overly broad in its
assertion of jurisdiction, because it could be interpreted to cover non-citizens who
had no connection with Al Qaeda or the terrorist attacks of September 11, 2001, as
well as offenders or offenses not triable by military commission pursuant to statute
29 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.
30 MCA § 4 (adding to 10 U.S.C. § 836(a) the words “except as provided in chapter 47A of
this title” and to § 836(b) the words” except insofar as applicable to military commissions
established under chapter 47A of this title”).
31 10 U.S.C. § 948a (as added by the MCA).
32 MCA § 4 (amending 10 U.S.C. §§ 821(jurisdiction of general courts-martial not
exclusive), 828 (detail or employment of reporters and interpreters), 848 (power to punish
contempt), 850(a) (admissibility of records of courts of inquiry), 904(aiding the enemy), and
906(spying)).
33 10 U.S.C. § 948b(d)(2).

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or the law of war.34 A person subject to the M.O. was amenable to detention and
possible trial by military tribunal for violations of the law of war and “other
applicable law.”35 M.C.O. No. 1 established that commissions may be convened to
try aliens designated by the President as subject to the M.O., whether captured
overseas or on U.S. territory, for violations of the law of war and “all other offenses
triable by military commissions.” The MCA largely validates the President’s
jurisdictional scheme for military commissions.
Personal Jurisdiction. While many observers agreed that the President is
authorized by statute to convene military commissions in the “Global War on
Terrorism,” some believed the President’s constitutional and statutory authority to
establish such tribunals does not extend beyond Congress’ authorization to use armed
force in response to the attacks.36 Under a literal interpretation of the M.O., however,
the President could 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.
The M.O. was not cited for the authority to detain; instead, the Department of
Defense asserted its authority to be grounded in the law of war, which permits
belligerents to kill or capture and detain enemy combatants. The Department of
Defense defined “enemy combatant” to mean “an individual who was part of or
supporting Taliban or al Qaida forces, or associated forces that are engaged in
hostilities against the United States or its coalition partners,” including “any person
who has committed a belligerent act or has directly supported hostilities in aid of
enemy armed forces.”37
The MCA applies a somewhat broader definition for “unlawful enemy
combatant,” which includes:
(i) a person who has engaged in hostilities or who has purposefully and
materially supported hostilities against the United States or its co-belligerents
who is not a lawful enemy combatant (including a person who is part of the
Taliban, al Qaeda, or associated forces); or
34 For a discussion of criticism related to the M.O. and M.C.O. No. 1, see CRS Report
RL31600, The Department of Defense Rules for Military Commissions: Analysis of
Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of
Military Justice, by Jennifer K. Elsea; see NATIONAL INSTITUTE OF MILITARY JUSTICE,
ANNOTATED GUIDE: PROCEDURES FOR TRIALS BY MILITARY COMMISSIONS OF CERTAIN
NON-UNITED STATES CITIZENS IN THE WAR AGAINST TERRORISM 10-11(2004)(hereinafter
“NIMJ”).
35 M.O. § 1(e) (finding such tribunals necessary to protect the United States and for effective
conduct of military operations).
36 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”).
37 See Combatant Status Review Tribunal Procedure, available online at
[http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf] (last visited
Oct. 1, 2006).

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(ii) a person who, before, on, or after the date of the enactment of the Military
Commissions Act of 2006, has been determined to be an unlawful enemy
combatant by a Combatant Status Review Tribunal or another competent
tribunal established under the authority of the President or the Secretary of
Defense.38
Thus, persons who do not directly participate in hostilities, but “purposefully
and materially” support hostilities, are subject to treatment as an “unlawful enemy
combatant” under the MCA. Citizens who fit the definition of “unlawful enemy
combatant” are not amenable to trial by military commission under the MCA, but
may be subject to detention.
The MCA does not define “hostilities” or explain what conduct amounts to
“supporting hostilities.” To the extent that the jurisdiction is interpreted to include
conduct that falls outside the accepted definition of participation in an armed conflict,
the MCA might run afoul of the courts’ historical aversion to trying civilians before
military tribunal when other courts are available.39 It is unclear whether this principle
would apply to aliens captured and detained overseas, but the MCA does not appear
to exempt from military jurisdiction permanent resident aliens captured in the United
States who might otherwise meet the definition of “unlawful enemy combatant.” It
is generally accepted that aliens within the United States are entitled to the same
protections in criminal trials that apply to U.S. citizens. Therefore, to subject persons
to trial by military commission who do not meet the exception carved out by the
Supreme Court in ex parte Quirin40 for unlawful belligerents, to the extent such
persons enjoy constitutional protections, would likely raise significant constitutional
questions.
Subject-Matter Jurisdiction. The MCA provides jurisdiction to military
commissions over “any offense made punishable by this chapter or the law of war
when committed by an alien unlawful enemy combatant....”41 Crimes to be triable
by military commission are defined in subchapter VII (10 U.S.C. §§ 950p - 950w).
Offenses include the following: murder of protected persons; attacking civilians,
civilian objects, or protected property; pillaging; denying quarter; taking hostages;
employing poison or similar weapons; using protected persons or property as shields;
torture, cruel or inhuman treatment; intentionally causing serious bodily injury;
mutilating or maiming; murder in violation of the law of war; destruction of property
in violation of the law of war; using treachery or perfidy; improperly using a flag of
truce or distinctive emblem; intentionally mistreating a dead body; rape; sexual
assault or abuse; hijacking or hazarding a vessel or aircraft; terrorism; providing
material support for terrorism; wrongfully aiding the enemy; spying; contempt;
perjury and obstruction of justice. 10 U.S.C. § 950v. Conspiracy (§ 950v(b)(28)),
38 10 U.S.C. § 948a(1).
39 See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), Duncan v. Kahanamoku, 327 U.S.
304 (1945).
40 317 U.S. 1 (1942).
41 10 U.S.C. § 948d.

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attempts (§ 950t), and solicitation (§ 950u) to commit the defined acts are also
punishable.
Military commissions under M.C.O. No. 1 were to have jurisdiction over crimes
listed in M.C.I. No. 2, Crimes and Elements for Trials by Military Commission,42
which appears to have served as a basis for the MCA list. The list of crimes in
M.C.I. No. 2 was not meant to be exhaustive. Rather, it was intended as an
illustration of acts punishable under the law of war43 or triable by military
commissions,44 but did not permit trial for ex post facto crimes.45
Although many of the crimes defined in the MCA seem to be well-established
offenses against the law of war, at least in the context of an international armed
conflict,46 a court might conclude that some of the listed crimes are new. For
42 M.C.I. No. 2 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. See NATIONAL INSTITUTE OF MILITARY JUSTICE, MILITARY COMMISSION
INSTRUCTIONS SOURCEBOOK 95 (2003) [hereinafter “SOURCEBOOK”].
43 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.
44 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.
45 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.”).
46 For example, see Article 3 of the Statute governing the International Criminal Tribunal
for the former Yugoslavia (ICTY) includes the following as violations of the laws or
customs of war in non-international armed conflict.
Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause
unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by
military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages,
dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to
religion, charity and education, the arts and sciences, historic monuments and
works of art and science;
(e) plunder of public or private property.
(continued...)

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example, a plurality of the Supreme Court in Hamdan agreed that conspiracy is not
a war crime under the traditional law of war.47 The crime of “murder in violation of
the law of war,” which punishes persons who, as unprivileged belligerents, commit
hostile acts that result in the death of any persons, including lawful combatants, may
also be new. While it appears to be well-established that a civilian who kills a lawful
combatant is triable for murder and cannot invoke the defense of combatant
immunity, it is not clear that the same principle applies in armed conflicts of a non-
international nature, where combatant immunity does not apply. The International
Criminal Tribunal for the former Yugoslavia (ICTY) has found that war crimes in the
context of non-international armed conflict include murder of civilians, but have
implied that the killing of a combatant is not a war crime.48 Similarly, defining as a
war crime the “material support for terrorism”49 does not appear to be supported by
historical precedent.
46 (...continued)
UN Doc. S/Res/827 (1993), art. 3. The ICTY Statute and procedural rules are available at
[http://www.un.org/icty/legaldoc-e/index.htm]. The Trial Chamber in the case Prosecutor
v. Naletilic and Martinovic, (IT-98-34)March 31, 2003, interpreted Article 3 of the Statute
to cover specifically: (i) violations of the Hague law on international conflicts; (ii)
infringements of provisions of the Geneva Conventions other than those classified as grave
breaches by those Conventions; (iii) violations of [Common Article 3) and other customary
rules on internal conflicts, and (iv) violations of agreements binding upon the parties to the
conflict” Id. at para. 224. See also Prosecutor v. Tadic, (IT-94-1) (Appeals Chamber),
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995,
para. 86-89.
The Appeals Chamber there set forth factors that make an offense a “serious” violation
necessary to bring it within the ICTY’s jurisdiction:
(i) the violation must constitute an infringement of a rule of international
humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the
required conditions must be met ...;
(iii) the violation must be “serious”, that is to say, it must constitute a breach of
a rule protecting important values, and the breach must involve grave
consequences for the victim....
(iv) the violation of the rule must entail, under customary or conventional law,
the individual criminal responsibility of the person breaching the rule.
Id. at para. 94
47 Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2785 (2006).
48 Prosecutor v. Kvocka et al., Case No. IT-98-30/1 (Trial Chamber), November 2, 2001,
para. 124: (“An additional requirement for Common Article 3 crimes under Article 3 of the
Statute is that the violations must be committed against persons ‘taking no active part in the
hostilities.’”); Prosecutor v. Jelisic, Case No. IT-95-10 (Trial Chamber), December 14, 1999,
para. 34 (“Common Article 3 protects “[p]ersons taking no active part in the hostilities”
including persons “placed hors de combat by sickness, wounds, detention, or any other
cause.”); Prosecutor v. Blaskic, Case No. IT-95-14 (Trial Chamber), March 3, 2000, para.
180 (“Civilians within the meaning of Article 3 are persons who are not, or no longer,
members of the armed forces. Civilian property covers any property that could not be
legitimately considered a military objective.”).
49 10 U.S.C. § 950v(b)(25)(incorporating the definition found in 18 U.S.C. § 2339(A)).

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Temporal and Spatial Jurisdiction. The law of war has traditionally
applied within the territorial and temporal boundaries of an armed conflict between
at least two belligerents.50 It traditionally has not been applied to conduct occurring
on the territory of neutral states or on territory not under the control of a belligerent,
to conduct that preceded the outbreak of hostilities, or to conduct during hostilities
that do not amount to an armed conflict. Unlike the conflict in Afghanistan, the
“Global War on Terrorism” does not have clear boundaries in time or space,51 nor is
it entirely clear who the belligerents are.
The broad reach of the M.O. to encompass conduct and persons customarily
subject to ordinary criminal law evoked criticism that the claimed jurisdiction of the
military commissions exceeded the customary law of armed conflict, which M.C.I.
No. 2 purported to restate.52 The MCA provides jurisdiction to military commissions
over covered offenses “when committed by an alien unlawful enemy combatant
before, on, or after September 11, 2001.”53 However, certain definitions used in
describing the offenses triable by military commissions would seem to limit many of
them to conduct occurring in an armed conflict.
A common element among the crimes enumerated in M.C.I. No.2 was that the
conduct “took place in the context of and was associated with armed conflict.” The
instruction explained that the phrase required a “nexus between the conduct and
armed hostilities,”54 which has traditionally been a necessary element of any war
crime. However, the definition of “armed hostilities” was broader than the
customary definition of war or “armed conflict.” According to the M.C.I., “armed
hostilities” need not be a declared war or “ongoing mutual hostilities.”55 Instead, any
hostile act or attempted hostile act might have had sufficient nexus if its severity rose
50 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).
51 Some may argue that no war has a specific deadline and that all conflicts are in a sense
indefinite. In traditional armed conflicts, however, it has been relatively easy to identify
when hostilities have ended; for example, upon the surrender or annihilation of one party,
an annexation of territory under dispute, an armistice or peace treaty, or when one party to
the conflict unilaterally withdraws its forces. See GERHARD VON GLAHN, LAW AMONG
NATIONS 722-730 (6th ed. 1992).
52 See Human Rights First, Trial Under Military Order, A Guide to the Final Rules for
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); See Leila Nadya Sadat, Terrorism and the Rule of Law, 3 WASH. U.
GLOBAL STUD. L. REV. 135, 146 (2004) (noting possibly advantageous domestic aspects of
treating terrorist attacks as war crimes, but identifying possible pitfalls of creating a new
international legal regime).
53 10 U.S.C. § 948d.
54 M.C.I. No. 2 § 5(C).
55 Id.

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to the level of an “armed attack,” or if it were intended to contribute to such acts.
Some commentators have argued that the expansion of “armed conflict” beyond its
customary bounds improperly expanded the jurisdiction of military commissions
beyond those that by statute or under the law of war are triable by military
commissions.56 The Supreme Court has not clarified the scope of the “Global War
on Terrorism” but has not simply deferred to the President’s interpretation.
In enacting the MCA, Congress seems to have provided the necessary statutory
definitions of criminal offenses to overcome previous objections with respect to
subject matter jurisdiction of military commissions. However, questions may still
arise with respect to the necessity for conduct to occur in the context of an armed
conflict in order to be triable by military commission. There is no express
requirement to that effect in the MCA. The overall purpose of the statute together
with the elements of some of the crimes arguably may be read to require a nexus.
The definition for “Enemy” provided in M.C.I. No. 2 raised similar issues.
According to § 5(B), “Enemy” includes
any entity with which the United States or allied forces may be engaged in armed
conflicts or which is preparing to attack the United States. It is not limited to
foreign nations, or foreign military organizations or members thereof. “Enemy”
specifically includes any organization of terrorists with international reach.
Some observers argued that this impermissibly subjected suspected international
criminals to the jurisdiction of military commissions in circumstances in which the
law of armed conflict has not traditionally applied.57 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.58 The MCA does not
define “enemy.” Military commissions trying persons accused of spying or aiding
the enemy, for example, face the challenge of determining whether the conduct
assisted an “enemy of the United States” as required under the MCA.
Composition and Powers
M.C.O. No. 1 provided for military commissions to consist of panels 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
56 See SOURCEBOOK, supra note 42, 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).
57 See id. at 38 (NACDL comments).
58 See id. at 98 (commentary of Eugene R. Fidell and Michael F. Noone).

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Defense or his designee,59 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 permitted the appointment of persons temporarily
commissioned by the President to serve as officers in the armed services during a
national emergency.60 The presiding officer was required to be a judge advocate in
any of the U.S. armed forces, but not necessarily a military judge.61
The MCA provides for a qualified military judge to preside over panels of at
least five military officers, except in the cases in which the death penalty is sought,
in which case the minimum number of panel members is twelve.62 Procedures for
assigning military judges as well as the particulars regarding the duties they are to
perform are left to the Secretary of Defense to prescribe, except that the military
judge may not be permitted to consult with members of the panel outside of the
presence of the accused and counsel except as prescribed in 10 U.S.C. § 949d. The
military judge has the authority to decide matters related to the admissibility of
evidence, including the treatment of classified information, but has no authority to
compel the government to produce classified information.
Like the previous DOD rules,63 the MCA empowers military commissions to
maintain decorum during proceedings. M.C.O. No. 1 authorized the presiding officer
“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).64 The MCA, 10 U.S.C. § 950w authorizes the military
commissions to “punish for contempt any person who uses any menacing word, sign,
or gesture in its presence, or who disturbs its proceedings by any riot or disorder.”
It is unclear whether this section is meant to expand the jurisdiction of military
commissions to cover non-enemy combatant witnesses or civilian observers. The
UCMJ authorizes other military commissions to punish contempt with a fine of $100,
59 M.C.O. No. 1 § 4(A)(3).
60 See 10 U.S.C. § 603, listed as reference (e) of M.C.O. No. 1.
61 M.C.O. No. 1 § 4(A)(4). See NIMJ, supra note 34, 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.
62 10 U.S.C. §§ 948m and 949m.
63 Throughout this report, except when otherwise specified, “DOD rules” refers to M.C.O.
No. 1 and other orders and instructions pursuant to the President’s Military Order, and does
not refer to the new Manual for Military Commissions published by DOD on January 18,
2007.
64 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”).

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confinement for up to 30 days, or both.65 Under article 47 of 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.66 This article is not
expressly made inapplicable to the military commissions established under the MCA.
The military commission has the same power as a general court-martial to compel
witnesses to appear in a manner “similar to that which courts of the United States
having criminal jurisdiction may lawfully issue.”67 However, rather than providing
that the trial counsel and the defense are to have equal opportunity to compel
witnesses and obtain evidence, the MCA provides the defense a “reasonable
opportunity” to obtain witnesses and evidence.
One of the perceived shortcomings of the M.O. had to do with the problem of
command influence over commission personnel. M.C.O. No. 1 provided for a “full
and fair trial,” but contained few specific safeguards to address the issue of
impartiality. The President or his designee were empowered to decide which charges
to press; to select the members of the panel, the prosecution and the defense counsel,
and the members of the review panel; and to approve and implement the final
outcome. The President or his designees had the authority to write procedural rules,
interpret them, enforce them, and amend them. Justice Kennedy remarked in his
concurring opinion that the concentration of authority in the Appointing Authority
was a significant departure from the structural safeguards Congress has built into the
military justice system.68
The MCA, by providing requirements for the procedural rules to guard against
command influence, may alleviate these concerns. In particular, the MCA prohibits
the unlawful influence of military commissions and provides that neither the military
commission members nor military counsel may have adverse actions taken against
them in performance reviews. Many of the procedural rules are left to the discretion
of the Secretary of Defense or his designee, more so than is the case under the UCMJ.
Procedures Accorded the Accused
M.C.O. No. 1 contained procedural safeguards similar to many of those that
apply in general courts-martial, but did not specifically adopt any procedures from
the UCMJ, even those that explicitly apply to military commissions.69 The M.C.O.
65 See 10 U.S.C. § 848. This section is made inapplicable to military commissions in
chapter 47a by MCA § 4.
66 See 10 U.S.C. § 847. It is unclear how witnesses are “duly subpoenaed;” 10 U.S.C. § 846
empowers the president of the court-martial to compel witnesses to appear and testify and
to compel production of evidence, but this statutory authority does not explicitly apply to
military commissions. The subpoena power extends to “any part of the United States, or the
Territories, Commonwealth and possessions.”
67 10 U.S.C. § 950j.
68 Hamdan, slip op. at 11-16 (Kennedy, J. concurring).
69 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
(continued...)

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made clear that its rules alone and no others were to govern the trials,70 perhaps
precluding commissions from looking to the UCMJ or other law to fill in any gaps.
Without explicitly recognizing that accused persons had rights under the law, the
M.C.O. listed procedures to be accorded to the accused, but specified that these were
not to be interpreted to give rise to any enforceable right, benefit or privilege, and
were not to be construed as requirements of the U.S. Constitution.71 Prior to the
DTA, the accused had no established opportunity to challenge the interpretation of
the rules or seek redress in case of a breach.72
The MCA lists a minimum set of rights to be afforded the accused in any trial,
and provides the accused an opportunity to appeal adverse verdicts based on
“whether the final decision was consistent with the standards and procedures
specified” in the MCA, and “to the extent applicable, the Constitution and the laws
of the United States.” The Department of Defense rules provided the accused was to
be informed of the charges sufficiently in advance of trial to prepare a defense;73 the
MCA provides that the accused is to be informed of the charges as soon as
practicable after the charges and specifications are referred for trial.74 The accused
continues under the MCA to be presumed innocent until determined to be guilty. As
was the case with the DOD rules, the presumption of innocence and the right against
self-incrimination are to 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.75 The accused has the right not to testify at trial and to have the
opportunity to present evidence and cross-examine witnesses for the prosecution,76
as was the case under the DOD rules.77
Open Hearing. The M.C.O. rules provided that the trials themselves were to
be conducted openly except to the extent the Appointing Authority or presiding
69 (...continued)
Congress did not intend the language “military commission” in Article 38 of the Articles of
War, the precursor to UCMJ Art. 36, to mean military commissions trying enemy
combatants). 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). The Supreme Court, however, rejected that 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.
70 M.C.O. No. 1 § 1.
71 Id. § 10.
72 Id.; M.C.I. No. 1 § 6 (Non-Creation of Right).
73 M.C.O. No. 1 § 5(A).
74 10 U.S.C. § 948q.
75 M.C.O. No. 1 §§ 5(B) and 6(B); 10 U.S.C. § 949i.
76 10 U.S.C. § 949a(b).
77 Id. §§ 4(A)(5)(a); 5(K); 6B(3).

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officer closed 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.”78 However, at the discretion of the Appointing Authority, “open proceedings”
did not necessarily have to be open to the public and the press.79
Because the public, and not just the accused, has a constitutionally protected
interest in public trials, the extent to which trials by military commission are open to
the press and public may be subject to challenge by media representatives.80 The
First Amendment right of public access extends to trials by court-martial,81 but is not
absolute. Trials may be closed only where the following test is met: the party seeking
closure demonstrates an overriding interest that is likely to be prejudiced; the closure
is narrowly tailored to protect that interest; the trial court has considered reasonable
alternatives to closure; and the trial court makes adequate findings to support the
closure.82
The MCA provides that the military judge may close portions of a trial only to
protect information from disclosure where such disclosure could reasonably be
expected to cause damage to the national security, such as information about
intelligence or law enforcement sources, methods, or activities; or to ensure the
physical safety of individuals.83 The information to be protected from disclosure
does not necessarily have to be classified. To the extent that the exclusion of the
press and public is based on the discretion of the military judge without consideration
of the constitutional requirements relative 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.”84 The reporters’ right
to gather information does not include an absolute right to gain access to areas not
78 M.C.O. No. 1 § 6(D)(5).
79 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. Rules for Court-Martial (R.C.M.)
Rule 806.
80 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).
81 United States v. Hershey, 20 M.J. 433 (C.M.A.1985), cert. denied, 474 U.S. 1062 (1986);
United States v. Grunden, 2 M.J. 116 (C.M.A.1977). The press has standing to challenge
closure of military justice proceedings. ABC, Inc. v. Powell, 47 M.J. 363, 365 (1997).
82 See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984).
83 10 U.S.C. § 949d(d).
84 Pell v. Procunier, 417 U.S. 817, 822-24 (1974).

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open to the public.85 Access of the press to the proceedings of military commissions
may be an issue 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.86
Right to be Present. Under UCMJ art. 39,87 the accused at a court-martial
has the right to be present at all proceedings other than the deliberation of the
members. Under the DOD rules for military commissions under M.C.O. No. 1, the
accused or the accused’s civilian attorney could be precluded from attending portions
of the trial for security reasons, but a detailed defense counsel was to be present for
all hearings. The MCA does not provide for the exclusion of the accused from
portions of his trial, and does not allow classified information to be presented to
panel members that is not disclosed to the accused. The accused may be excluded
from trial proceedings (other than panel deliberations) by the military judge only
upon a determination that the accused persists in disruptive or dangerous conduct.88
Right to Counsel. As is the case in military courts-martial, an accused before
a military commission under both M.C.O. No. 1 and the MCA has the right to have
military counsel assigned free of charge. The right to counsel attaches much earlier
in the military justice system, where the accused has a right to request an attorney
prior to being interrogated about conduct relating to the charges contemplated.
Under the MCA, at least one qualifying military defense counsel is to be detailed “as
soon as practicable after the swearing of charges….”89 The accused may also hire a
civilian attorney who is a U.S. citizen, is admitted to the bar in any state, district, or
possession, has never been disciplined, has a SECRET clearance (or higher, if
necessary for a particular case), and agrees to comply with all applicable rules. If
civilian counsel is hired, the detailed military counsel serves as associate counsel.90
Unlike the DOD rules, the MCA provides that the accused has the right to self-
representation.91
85 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).
86 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).
87 10 U.S.C. § 839.
88 10 U.S.C. § 949d(e).
89 10 U.S.C. § 948k.
90 10 U.S.C. § 949c(b).
91 10 U.S.C. § 949a(b)(2)(D). M.C.I. No. 4 required detailed defense counsel to “defend the
accused zealously within the bounds of the law ... notwithstanding any intention expressed
by the accused to represent himself.” M.C.I. No. 4 § 3(C).

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DOD rules provided that defense counsel was to be assigned free of cost once
charges were referred, but permitted the accused to request another JAG officer to be
assigned as a replacement if available in accordance with any applicable instructions
or supplementary regulations that might later be issued.92 The MCA does not provide
the accused an opportunity to request a specific JAG officer to act as counsel. If the
accused retains the services of a civilian attorney, or, presumably, if the accused opts
to represent himself, military defense counsel is to act as associate counsel.
The MCA requires civilian attorneys defending an accused before military
commission to meet the same strict qualifications that applied under DOD rules.93
Under M.C.O. No. 1, a civilian attorney had to be a U.S. citizen with at least a
SECRET clearance,94 with membership in any state or territorial bar and no
disciplinary record, and was required to agree in writing to comply with all rules of
court.95 The MCA does not set forth in any detail what rules might be established to
govern the conduct of civilian counsel. The MCA does not address the monitoring
of communications between the accused and his attorney, and does not provide for
an attorney-client privilege. Such matters will likely be subject to rules established
by the Department of Defense.
With respect to the monitoring of attorney-client communications, the DOD
rules for military commissions initially provided that civilian counsel were required
to agree that communications with the client were subject to monitoring. That
requirement was later modified to require prior notification and to permit the attorney
to notify the client when monitoring is to occur.96 Although the government was not
permitted to use information against the accused at trial, some argued that the
absence of the normal attorney-client privilege could impede communications
between them, possibly decreasing the effectiveness of counsel. Civilian attorneys
were bound to inform the military counsel upon learning of information about a
92 M.C.O. No. 1 § 4(C). M.C.I. No. 4 § 3(D) listed criteria for the “availability” of selected
detailed counsel.
93 10 U.S.C. § 949c(b).
94 Originally, civilian attorneys were required to pay the costs associated with obtaining a
clearance. M.C.I. No. 5 §3(A)(2)(d)(ii). DOD later 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).
95 M.C.O. No. 1 § 4(C)(3)(b).
96 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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pending crime that could lead to “death, substantial bodily harm, or a significant
impairment of national security.”97 The Appointing Authority was empowered to
revoke any attorney’s eligibility to appear before any commission.98
Evidentiary Matters
The Sixth Amendment to the U.S. Constitution guarantees that those accused
in criminal prosecutions have the right to be “confronted with the witnesses against
[them]” and to have “compulsory process for obtaining witnesses in [their] favor.”99
The Supreme Court has held that “[t]he central concern of the Confrontation Clause
is to ensure the reliability of the evidence against a criminal defendant by subjecting
it to rigorous testing in the context of an adversary proceeding before the trier of
fact.”100 The Military Rules of Evidence (Mil. R. Evid.)101 provide that “[a]ll relevant
evidence is admissible, except as otherwise provided by the Constitution of the
United States [and other applicable statutes, regulations and rules].”102 Relevant
evidence is excluded if its probative value is outweighed by other factors.103 At
court-martial, the accused has the right to view any documents in the possession of
the prosecution related to the charges, and evidence that reasonably tends to negate
the guilt of the accused, reduce the degree of guilt or reduce the punishment,104 with
some allowance for protecting non-relevant classified information.105
Supporters of the use of military commissions to try suspected terrorists have
viewed the possibility of employing evidentiary standards that vary from those that
as a significant advantage over the use of standards that apply in federal courts or in
military courts-martial. The Supreme Court seemed to indicate that the DOD rules
were inadequate under international law, remarking that “various provisions of
Commission Order No. 1 dispense with the principles, articulated in Article 75 [of
Protocol I to the Geneva Conventions] and indisputably part of the customary
97 M.C.I. No. 5, Annex B § II(J). M.C.I. No. 5 provided no criteria to assist defense counsel
in identifying what might constitute a “significant impairment of national security.”
98 Id. § 4(A)(5)(b).
99 U.S. CONST. Amdt. VI applies in courts-martial. E.g. United States v. Scheffer, 523 U.S.
303 (1998).
100 Maryland v. Craig, 497 U.S. 836, 845 (1990).
101 The Military Rules of Evidence (Mil. R. Evid.) are contained in the Manual for Courts-
Martial (M.C.M.), established as Exec. Order No. 12473, Manual for Courts-Martial, United
States, 49 Fed. Reg 17,152, (Apr. 23, 1984), as amended. The M.C.M. also contains the
procedural rules for courts-martial, known as the Rules For Courts-Martial (R.C.M.).
102 Mil. R. Evid. 402.
103 Mil. R. Evid. 403 (relevant evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the members, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence”).
104 See R.C.M. 701(a)(6); NIMJ, supra note 34, at 31-32.
105 Mil. R. Evid. 505 provides procedures similar to the Classified Information Protection
Act (CIPA) that applies in civilian court.

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international law, that an accused must, absent disruptive conduct or consent, be
present for his trial and must be privy to the evidence against him.”106
The MCA provides that the “accused shall be permitted to present evidence in
his defense, to cross-examine the witnesses who testify against him, and to examine
and respond to evidence admitted against him on the issue of guilt or innocence and
for sentencing.”107 It is not clear what evidence might be excluded from this
requirement as irrelevant to the issues of guilt, innocence, or appropriate punishment.
A likely issue will be whether evidence relevant to the credibility of a witness or the
authenticity of a document is permitted to be excluded from the accused’s right to
examine and respond to evidence, unless expressly provided elsewhere in the MCA.
Discovery. The MCA provides that defense counsel is to be afforded a
reasonable opportunity to obtain witnesses and other evidence, including evidence
in the possession of the United States, as specified in regulations prescribed by the
Secretary of Defense.108 Unlike M.C.O. No. 1, the MCA does not expressly direct
the prosecution to provide to the accused all of the evidence trial counsel intends to
present.109 However, as noted above, the accused is entitled to examine and respond
to evidence relevant to establishing culpability. Both M.C.O. No. 1 and the MCA
provide that the accused is entitled to exculpatory information known to the
prosecution, with procedures permitting some variance for security concerns.
Like M.C.O. No. 1, the MCA provides for the protection of national security
information during the discovery phase of a trial. The military judge must authorize
discovery in accordance with rules prescribed by the Secretary of Defense to redact
classified information or to provide an unclassified summary or statement describing
the evidence.110 However, where M.C.O. No. 1 permitted the withholding of any
“Protected Information,”111 the MCA permits the government to withhold only
properly classified information that has been determined by the head of a government
agency or department to require protection because its disclosure could result in harm
to the national security.
106 Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2798 (2006)(while accepting that the government
“has a compelling interest in denying [the accused] access to certain sensitive information,”
stating that “at least absent express statutory provision to the contrary, information used to
convict a person of a crime must be disclosed to him”).
107 10 U.S.C. § 949a.
108 10 U.S.C. § 949j.
109 M.C.O. No. 1, § 5(E) (requiring such information, as well as any exculpatory evidence
known by the prosecution, to be provided to the accused as long as such information was
not deemed to be protected under Sec. 6(D)(5)).
110 10 U.S.C. § 949j.
111 M.C.O. No. 1, § 6 (defining “Protected Information” to include classified or classifiable
information, information protected “by law or rule from unauthorized disclosure,”
information that could endanger trial participants, intelligence and law enforcement sources,
methods or activities, or “information concerning other national security interests”).

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The MCA provides for the mandatory production of exculpatory information
known to trial counsel (defined as exculpatory evidence that the prosecution would
be required to disclose in a general court-martial112), but does not permit defense
counsel or the accused to view classified information. The military judge is
authorized to permit substitute information, in particular when trial counsel moves
to withhold information pertaining to the sources, methods, or activities by which the
information was acquired. The military judge may (but need not) require that the
defense and the commission members be permitted to view an unclassified summary
of the sources, methods, or activities, to the extent practicable and consistent with
national security.113
Under M.C.O. No. 1, the presiding officer had the authority to permit the
deletion of specific items from any information to be made available to the accused
or defense counsel, or to direct that unclassified summaries of protected information
be prepared.114 The accused was to have access to protected information to be used
by the prosecution and exculpatory protected information “to the extent consistent
with national security, law enforcement interests, and applicable law.”115 Defense
counsel was permitted to view the classified version only if the evidence was to be
admitted at trial. The MCA does not provide defense counsel with access to the
classified information that serves as the basis for substitute or redacted proffers.
Admissibility of Evidence. The standard for the admissibility of evidence
in the MCA remains as it was stated in the M.O.; evidence is admissible if it is
deemed to have “probative value to a reasonable person.”116 However, the MCA
provides that the military judge is to exclude evidence if its probative value is
outweighed by the “danger of unfair prejudice, confusion of the issues, or misleading
the commission”; or by “considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”117
112 It is not clear what information would be required to be provided under this subsection.
Discovery at court-martial is controlled by R.C.M. 701, which requires trial counsel to
provide to the defense any papers accompanying the charges, sworn statements in the
possession of trial counsel that relate to the charges, and all documents and tangible objects
within the possession or control of military authorities that are material to the preparation
of the defense or that are intended for use in the prosecution’s case-in-chief at trial.
Exculpatory evidence appears to be a subset of “evidence favorable to the defense,” which
includes evidence that tends to negate the guilt of the accused of an offense charged, reduce
the degree of guilt, or reduce the applicable punishment.
113 10 U.S.C. § 949j.
114 Id. § 6(D)(5)(b). Some observers note that protected information could include
exculpatory evidence as well as incriminating evidence, which could implicate 6th
Amendment rights and rights under the Geneva Convention, if applicable. See HRF, supra
note 52, at 3.
115 M.C.O. No. 1 § 6(D)(5)(b).
116 M.C.O. No. 1 § 6(D)(1).
117 10 U.S.C. § 949a(b)(2)(F).

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Coerced Statements. The MCA prohibits the use of statements obtained
through torture as evidence in a trial, except as proof of torture against a person
accused of committing torture. For information obtained through coercion that does
not amount to torture, the MCA provides a different standard for admissibility
depending on whether the statement was obtained prior to or after the enactment of
the DTA. Statements elicited through such methods prior to the DTA are admissible
if the military judge finds the “totality of circumstances under which the statement
was made renders it reliable and possessing sufficient probative value” and “the
interests of justice would best be served” by admission of the statement. Statements
taken after passage of the DTA are admissible if, in addition to the two criteria above,
the military judge finds that “the interrogation methods used to obtain the statement
do not violate the cruel, unusual, or inhumane treatment or punishment prohibited by
the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution.”
M.C.O. No. 1 did not specifically preclude the admission of coerced evidence.
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.
Hearsay. M.C.O. No. 1 did not exclude hearsay evidence. The MCA allows
for the admission of hearsay evidence that would not be permitted under the Manual
for Courts-Martial118 only if the proponent of the evidence notifies the adverse party
sufficiently in advance of the intention to offer the evidence, as well as the
“particulars of the evidence (including [unclassified] information on the general
circumstances under which the evidence was obtained).”119 However, the evidence
is inadmissible if the party opposing its admission “clearly demonstrates that the
evidence is unreliable or lacking in probative value.” An issue may be whether the
rules provide for adequate information regarding the source of evidence for an
accused to be in a position to refute the reliability of its content.120
Classified Evidence. At military commissions convened pursuant to the
MCA, classified information is to be protected during all stages of proceedings and
is privileged from disclosure for national security purposes.121 Whenever the original
classification authority or head of the agency concerned determines that information
is properly classified and its release would be detrimental to the national security, the
military judge “shall authorize, to the extent practicable,” the “deletion of specified
118 Mil. R. Evid. 801-807 provide procedures for determining the admissibility of hearsay
evidence in courts-martial. It is unclear how, under the MCA, it is to be determined whether
certain hearsay evidence would be admissible in a general court-martial.
119 10 U.S.C. § 949a(b)(3)).
120 See Jencks v. United States, 353 U.S. 657 (1957)(“Requiring the accused first to show
conflict between the reports [in the possession of the government] and the testimony is
actually to deny the accused evidence relevant and material to his defense.”).
121 Defined in 10 U.S.C. §948a(4) as “[a]ny information or material that has been determined
by the United States Government pursuant to statute, Executive order, or regulation to
require protection against unauthorized disclosure for reasons of national security” and
“restricted data, as that term is defined in section 11y of the Atomic Energy Act of 1954 (42
U.S.C. 2014(y)).”

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items of classified information from documents made available to the accused”; the
substitution of a “portion or summary of the information”; or “the substitution of a
statement admitting relevant facts that the classified information would tend to
prove.” The military judge must consider a claim of privilege and review any
supporting materials in camera, and is not permitted to disclose the privileged
information to the accused.122
With respect to the protection of intelligence sources and methods relevant to
specific evidence, the military judge is required to permit trial counsel to introduce
otherwise admissible evidence before the military commission without disclosing the
“sources, methods, or activities by which the United States acquired the evidence”
if the military judge finds that such information is classified and that the evidence is
reliable. The military judge may (but need not) require trial counsel to present an
unclassified summary of such information to the military commission and the
defense, “to the extent practicable and consistent with national security.”
The MCA does not explicitly provide an opportunity for the accused to contest
the admissibility of substitute evidence proffered under the above procedures. It does
not appear to permit the accused or his counsel to examine the evidence or a
proffered substitute prior to its presentation to the military commission. If
constitutional standards required in the Sixth Amendment are held to apply to
military commissions, the MCA may be open to challenge for affording the accused
an insufficient opportunity to contest evidence. An issue may arise as to whether,
where the military judge is permitted to assess the reliability of evidence based on ex
parte communication with the prosecution, adversarial testing of the reliability of
evidence before the panel members meets constitutional requirements. If the military
judge’s determination as to reliability is conclusive, precluding entirely the
opportunity of the accused to contest its reliability, the use of such evidence may
serve as grounds to challenge the verdict.123 On the other hand, if evidence resulting
from classified intelligence sources and methods contains “‘particularized guarantees
of trustworthiness’ such that adversarial testing would be expected to add little, if
anything, to [its] reliability,”124 it may be admissible and survive challenge.
Sentencing
M.C.O. No. 1 required the prosecution to provide in advance to the accused any
evidence to be used for sentencing, unless good cause could be shown. The accused
was permitted to present evidence and make a statement during sentencing
122 10 U.S.C. § 949d(f)(3).
123 Cf. Crane v. Kentucky, 476 U.S. 683 (1986)(evidence about the manner in which a
confession was obtained should have been admitted as relevant to its reliability and
credibility despite court’s determination that the confession was voluntary and need not be
suppressed).
124 Cf. Ohio v. Roberts, 448 U.S. 56, 66 (1980)(admissibility of hearsay evidence), but cf.
Crawford v. Washington, 541 U.S. 36 (2004)(“Admitting statements deemed reliable by a
judge is fundamentally at odds with the right of confrontation. ... [The Confrontation
Clause] commands... that reliability be assessed in a particular manner: by testing in the
crucible of cross-examination.”).

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proceedings; however, this right did not appear to mirror the right to make an
unsworn statement that military defendants may exercise in regular courts-martial,125
and apparently the statements were subject to cross-examination. The MCA provides
that the accused is entitled to have access to evidence relevant to sentencing, but does
not provide that the accused must be given the opportunity to make a statement.
Possible penalties under M.C.O. No. 1 included execution,126 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” was not to count
toward serving any sentence imposed.127 Sentences agreed in plea agreements were
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 could only be imposed upon a unanimous vote of the
commission.128 In courts-martial involving any crime punishable by death, however,
both the conviction and the death sentence must be by unanimous vote.129
The MCA provides that military commissions may adjudge “any punishment
not forbidden by [it or the UCMJ], including the penalty of death….”130 It
specifically proscribes punishment “by flogging, or by branding, marking, or
tattooing on the body, or any other cruel or unusual punishment, ... or [by the] use of
irons, single or double.”131 A vote two-thirds of the members present for the vote is
required for sentences of up to 10 years. Longer sentences require the concurrence
of three-fourths of the members present. The death penalty must be approved
unanimously, both as to guilt and to the sentence, by all members present for the
vote.
In cases where the death penalty is sought, a panel of 12 members is required
(unless the convening authority certifies that 12 members are not “reasonably
available” because of physical conditions or military exigencies, in which case no
fewer than nine are required), with all members present for the vote agreeing on the
125 See NIMJ, supra note 34, at 37 (citing United States v. Rosato, 32 M.J. 93, 96 (C.M.A.
1991)).
126 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.
127 M.C.I. No. 7 § 3(A).
128 M.C.O. No. 1 § 6(F).
129 10 U.S.C. § 851.
130 10 U.S.C. § 948d.
131 10 U.S.C. § 949s.

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sentence. The death penalty must be expressly authorized for the offense,132 and the
charges referred to the commission must have expressly sought the penalty of
death.133 The death sentence may not be executed until the commission proceedings
have been finally adjudged lawful and all appeals are exhausted, and after the
President approves the sentence. 10 U.S.C. § 950i(b)-(c). The President is permitted
to “commute, remit, or suspend [a death] sentence, or any part thereof, as he sees fit.”
10 U.S.C. § 950i(b). For sentences other than death, the Secretary of the Defense or
the convening authority are permitted to adjust the sentence downward. 10 U.S.C.
§ 950i(d).
Post-Trial Procedure
Criticism leveled at the language of the M.O. included concern that it did not
include an opportunity for the accused to appeal a conviction and that it seemingly
barred habeas corpus relief.134 Other concerns were that it appeared to allow the
Secretary of Defense (or the President) the discretion to change the verdict from not
guilty to guilty, and that it did not adequately protect persons from double
jeopardy.135
Review and Appeal. M.C.O. No.1 addressed some of the above concerns by
providing for an administrative review of the trial record by the Appointing Authority
and then by a review panel consisting of three military officers, one of whom was
required to have experience as a judge. The review panel could, at its discretion,
review any written submissions from the prosecution and the defense, who did not
necessarily have an opportunity to view or rebut the submission from the opposing
132 The MCA permits the death penalty for convictions of murder of a protected person or
murder in violation of the law of war, or spying; and if death results, any of the following
crimes: attacking civilians, taking hostages, employing poison or similar weapon, using
protected persons as a shield, torture or cruel or inhuman treatment, intentionally causing
serious bodily injury, maiming, using treachery or perfidy, hijacking or hazarding a vessel
or aircraft, terrorism, and conspiracy to commit any of the crimes enumerated in 10 U.S.C.
§ 950v.
133 10 U.S.C. § 949m.
134 Persons subject to the M.O. were 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. M.O. at § 7(b). However, the Administration
originally indicated that defendants were permitted to petition a federal court for a writ of
habeas corpus to challenge the jurisdiction of the military commission. 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 do have access to federal courts, but the
extent to which the findings of military commissions will be reviewable was not clarified.
124 S. Ct. 2686 (2004). Congress, by enacting the DTA and the MCA, has revoked the
jurisdiction of federal courts over habeas corpus petitions filed by or on behalf of aliens
detained by the United States as enemy combatants. For an analysis of the habeas
provisions in these Acts, see CRS Report RL33180, Enemy Combatant Detainees: Habeas
Corpus Challenges in Federal Court, by Jennifer K. Elsea and Kenneth Thomas.
135 See Laurence H. Tribe, Trial by Fury, THE NEW REPUBLIC, Dec. 10, 2001.

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party.136 The review panel, upon forming a “firm and definite conviction that a
material error of law occurred,” could return the case to the appointing authority for
further proceedings. The Appointing Authority was bound to dismiss a charge if the
the review panel determined that one or more charges should be dismissed.137 For
other cases involving errors, the Appointing Authority was required to return the case
to the military commission. Otherwise, the case was to be forwarded to the Secretary
of Defense with a written recommendation. (Under the UCMJ, the trial record of a
military commission would be forwarded to the appropriate JAG first.)138 After
reviewing the record, the Secretary of Defense was to forward the case to the
President, or he could return it for further proceedings for any reason, not explicitly
limited to material errors of law. The M.C.O. did not indicate what “further
proceedings” might entail, or what was to happen to a case that had been
“disapproved.”
The MCA provides for the establishment of a new review body, the Court of
Military Commission Review (CMCR), comprised of appellate military judges who
meet the same qualifications as military judges or comparable qualifications for
civilian judges.139 The accused may appeal a final decision of the military
commission with respect to issues of law to the CMCR. If this appeal fails, the
accused may appeal the final decision to the United States Court of Appeals for the
District of Columbia Circuit.140 Appellate court decisions may be reviewed by the
Supreme Court under writ of certiorari.141
Like the UCMJ, the MCA prohibits the invalidation of a verdict or sentence due
to an error of law unless the error materially prejudices the substantial rights of the
136 The convening authority of a general court-martial is required to consider all matters
presented by the accused. 10 U.S.C. § 860. The MCA contains a similar provision. 10
U.S.C. § 950b.
137 M.C.I. No. 9 § 4(C).
138 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).
139 10 U.S.C. § 950f.
140 10 U.S.C. § 950g. No collateral attack on the verdict is permitted. 10 U.S.C. § 949j(b)
provides that
Except as otherwise provided in this chapter and notwithstanding any other
provision of law (including section 2241 of title 28 or any other habeas corpus
provision), no court, justice, or judge shall have jurisdiction to hear or consider
any claim or cause of action whatsoever, including any action pending on or filed
after the date of the enactment of the Military Commissions Act of 2006, relating
to the prosecution, trial, or judgment of a military commission under this chapter,
including challenges to the lawfulness of procedures of military commissions
under this chapter.
141 10 U.S.C. § 950g.

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accused.142 The M.C.O. did not contain such explicit prohibition, but M.C.I. No. 9
defined “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.143 M.C.I. No. 9 allowed
the review panel to recommend the disapproval of a finding of guilty on a basis other
than a material error of law,144 but did not indicate what options the review panel
would have with respect to findings of not guilty.
Protection against Double Jeopardy. The M.C.O. provided that the
accused could not be tried for the same charge twice by any military commission
once the commission’s finding on that charge became final (meaning once the verdict
and sentence had been approved).145 Therefore, apparently, jeopardy did not attach
— there would not have been a “trial” — until the final verdict was 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.146 Although M.C.O. No. 1 provided that an
authenticated verdict147 of not guilty by the commission could not be changed to
guilty,148 the rules allowed either the Secretary of Defense or the President to
disapprove the finding and return the case for “further proceedings” prior to the
findings’ becoming final, regardless of the verdict. The possibility that a finding of
not guilty could be referred back to the commission for rehearing may have had
double jeopardy implications.149
Like M.C.O. No. 1, the MCA provides that “[n]o person may, without his
consent, be tried by a military commission under this chapter a second time for the
142 10 U.S.C. § 859; 10 U.S.C. § 950a(a).
143 M.C.I. No. 9 § 4(C)(2)(a).
144 M.C.I. No. 9 § 4(C)(1)(b).
145 M.C.O. No. 1 § 5(P). The finding was to become 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).
146 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.
147 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.”
148 M.C.O. No. 1 § 6(H)(2).
149 The UCMJ does not permit rehearing on a charge for which the accused is found on the
facts to be not guilty.

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same offense.”150 Jeopardy attaches when a guilty finding becomes final after review
of the case has been fully completed. Id. The MCA prevents double jeopardy by
expressly eliminating the possibility that a finding that amounts to a verdict of not
guilty is subject to reversal by the convening authority or to review by the CMCR or
the D.C. Circuit. The severity of a sentence adjudged by the military commission
cannot be increased on rehearing unless the sentence prescribed for the offense is
mandatory. 10 U.S.C. § 950b(d)(2)(B).
M.C.O. No. 1 did not provide a specific form for the charges, and did not
require that they be authenticated by an oath or signature.151 The inadequacy of an
indictment in specifying charges could raise double jeopardy concerns.152 If the
charge does not adequately describe the offense, another trial for the same offense
under a new description is not as easily prevented. The MCA requires that charges
and specifications be signed under oath by a person with personal knowledge or
reason to believe that matters set forth therein are true. 10 U.S.C. § 948q. The
charges must be served on the accused written in a language he understands. 10
U.S.C. § 948s. There is no express requirement regarding the specificity of the
charges.
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.153 A federal
criminal trial, as a trial conducted under the same sovereign as a military
commission, could have double jeopardy implications if the accused had already been
tried by military commission for the same crime or crimes, even if the commission
proceedings did not result in a final verdict. The federal court would face the issue
of whether jeopardy had already attached prior to the transfer of the individual from
military control to other federal authorities. The MCA does not expressly prohibit
trial in another forum.
Conversely, the M.O. provided that 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. Neither the MCA nor M.C.O. No. 1 explicitly provides for a double
jeopardy defense under such circumstances.
The following charts provide a comparison of the 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
authorized by the Military Commissions Act of 2006. Table 1 compares the legal
150 10 U.S.C. § 949h.
151 See M.C.O. No. 1 § 6(A)(1).
152 See NIMJ, supra note 34, at 39.
153 M.O. § 7(e).

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CRS-29
authorities for establishing military tribunals, the jurisdiction over persons and
offenses, and the structures of the tribunals. Table 2, which compares procedural
safeguards incorporated in the previous DOD regulations (in force prior to the
Hamdan decision and the enactment of the MCA) 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, the international military
tribunals that tried World War II crimes at Nuremberg and Tokyo, and contemporary
ad hoc tribunals set up by the UN Security Council to try crimes associated with
hostilities in the former Yugoslavia and Rwanda.

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CRS-30
Table 1. Comparison of Courts-Martial and Military Commission Rules
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
Authority
U.S. Constitution, Article I, § 8.
U.S. Constitution, Article II; Presidential
U.S. Constitution, Article I, § 8.
Military Order of Nov. 13, 2001 (M.O).
Procedure
Rules are provided by the Uniform Code of
Rules are issued by the Secretary of Defense
The Secretary of Defense may prescribe rules
Military Justice (UCMJ), chapter 47, title 10,
pursuant to the M.O. No other rules apply
of evidence and procedure for trial by a
and the Rules for Courts-Martial (R.C.M.) and (presumably excluding the UCMJ). § 1.
military commission. The rules may not be
the Military Rules of Evidence (Mil. R. Evid.),
inconsistent with the MCA. Rules of
issued by the President pursuant to art. 36,
The President declared it “impracticable” to
procedure and evidence applicable to courts-
UCMJ.
employ procedures used in federal court,
martial under the UCMJ are to apply to
10 U.S.C. § 836.
pursuant to 10 U.S.C. § 836.
military commissions except where otherwise
specified. 10 U.S.C. § 949a(a).
The Secretary of Defense, in consultation with
the Attorney General, may make exceptions to
UCMJ procedural rules “as may be required
by the unique circumstances of the conduct of
military and intelligence operations during
hostilities or by other practical need.”
10 U.S.C.§ 949a(b).
However, the rules must include certain rights
as listed in § 949a(b)(2). Specific UCMJ
provisions the Secretary may except are listed
in § 949a(b)(3).

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CRS-31
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
Jurisdiction
Members of the armed forces, cadets,
Individual subject to M.O., determined by
Any “alien unlawful combatant” is subject to
over Persons
midshipmen, reservists while on inactive-duty
President to be:
trial by military commission.
training, members of the National Guard or
1. a non-citizen, and
10 U.S.C. § 948c.
Air National Guard when in federal service,
2. a member of Al Qaeda or person who has
prisoners of war in custody of the armed
engaged in acts related to terrorism against the An “unlawful enemy combatant” is “a person
forces, civilian employees accompanying the
United States, or who has harbored one or
who has engaged in hostilities or who has
armed forces in time of declared war, and
more such individuals
purposefully and materially supported
certain others, including “persons within an
and is referred to the commission by the
hostilities against the United States or its
area leased by or otherwise reserved or
Appointing Authority.
co-belligerents”; or a person determined to be
acquired for the use of the United States.”
§ 3(A).
an unlawful enemy combatant by a CSRT or
10 U.S.C. § 802; United States v. Averette, 17
other competent tribunal established under the
USCMA 363 (1968) (holding “in time of war”
authority of the President or the Secretary of
to mean only wars declared by Congress.
Defense, which determination is dispositive of
Individuals who are subject to military
status. 10 U.S.C. §§ 948a and 948d(c).
tribunal jurisdiction under the law of war may
also be tried by general court martial.
“Lawful combatant” is defined in terms of
10 U.S.C. § 818.
GPW Art. 4. Proposed 10 U.S.C. § 948a(2).

---

CRS-32
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
Jurisdiction
Any offenses made punishable by the UCMJ;
Offenses in violation of the laws of war and all Offenses include the following: murder of
over Offenses
offenses subject to trial by military tribunal
other offenses triable by military commission. protected persons; attacking civilians, civilian
under the law of war.
§ 3(B).
objects, or protected property; pillaging;
10 U.S.C. § 818.
denying quarter; taking hostages; employing
M.C.I. No. 2 clarifies that terrorism and
poison or similar weapons; using protected
related crimes are “crimes triable by military
persons or property as shields; torture, cruel or
commission.” These include (but are not
inhuman treatment; intentionally causing
limited to): willful killing of protected
serious bodily injury; mutilating or maiming;
persons; attacking civilians; attacking civilian
murder in violation of the law of war;
objects; attacking protected property;
destruction of property in violation of the law
pillaging; denying quarter; taking hostages;
of war; using treachery or perfidy; improperly
employing poison or analogous weapons;
using a flag of truce or distinctive emblem;
using protected persons as shields; using
intentionally mistreating a dead body; rape;
protected property as shields; torture; causing sexual assault or abuse; hijacking or hazarding
serious injury; mutilation or maiming; use of
a vessel or aircraft; terrorism; providing
treachery or perfidy; improper use of flag of
material support for terrorism; wrongfully
truce; improper use of protective emblems;
aiding the enemy; spying, contempt; perjury
degrading treatment of a dead body; and rape;
and obstruction of justice. Proposed 10 U.S.C.
hijacking or hazarding a vessel or aircraft;
§ 950v. Conspiracy (§ 950v(b)(28)), attempts
terrorism; murder by an unprivileged
(§ 950t), and solicitation (§ 950u) to commit
belligerent; destruction of property by an
the defined acts are also punishable.
unprivileged belligerent; aiding the enemy;
spying; perjury or false testimony; and
obstruction of justice; aiding or abetting;
solicitation; command/superior responsibility -
perpetrating; command/superior responsibility
- misprision; accessory after the fact;
conspiracy; and attempt.

---

CRS-33
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
Composition
A military judge and not less than five
From three to seven members, as determined
A military judge and at least five members, 10
members, or if requested, except in capital
by the Appointing Authority. § 4(A)(2).
U.S.C. § 948m, unless the death penalty is
cases, a military judge alone. R.C.M. 501.
sought, in which case no fewer than 12
members must be included, 10 U.S.C. §
949m(c).
Source: Congressional Research Service.

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CRS-34
Table 2. Comparison of Procedural Safeguards
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
Presumption of If the defendant fails to enter a proper plea, a
The accused shall be presumed innocent until
Before a vote is taken on the findings, the
Innocence
plea of not guilty will be entered. R.C.M.
proven guilty. § 5(B).
military judge must instruct the commission
910(b).

members “that the accused must be presumed
Commission members must base their vote for to be innocent until his guilt is established by
Members of court martial must be instructed
a finding of guilty on evidence admitted at
legal and competent evidence beyond
that the “accused must be presumed to be
trial. §§ 5(C); 6(F).
reasonable doubt.” 10 U.S.C. § 949l.
innocent until the accused’s guilt is

established by legal and competent evidence
The Commission must determine the
If an accused refuses to enter a plea or pleads
beyond a reasonable doubt.” R.C.M. 920(e).
voluntary and informed nature of any plea
guilty but provides inconsistent testimony, or
agreement submitted by the accused and
if it appears that he lacks proper
The accused shall be properly attired in
approved by the Appointing Authority before
understanding of the meaning and effect of
uniform with grade insignia and any
admitting it as stipulation into evidence. §
the guilty plea, the commission must treat the
decorations to which entitled. Physical
6(B).
plea as denying guilt.
restraint shall not be imposed unless
10 U.S.C. § 949i.
prescribed by the military judge. R.C.M. 804.
Right to
Coerced confessions or confessions made in
Not provided. Neither the M.O. nor M.C.O.
Article 31, UCMJ, is expressly made
Remain Silent
custody without statutory equivalent of
requires a warning or bars the use of
inapplicable. 10 U.S.C. § 948b(d).
Miranda warning are not admissible as
statements made during military interrogation,
evidence, unless a narrow “public safety”
or any coerced statement, from military
Confessions allegedly elicited through
exception applies. Art. 31, UCMJ, 10 U.S.C.
commission proceedings. Art. 31(a), UCMJ
coercion or compulsory self-incrimination
§ 831.
(10 U.S.C. § 831) bars persons subject to it
that are otherwise admissible are not to be
from compelling any individual to make a
excluded at trial unless violates section 948r.
Once a suspect is in custody or charges have
confession, but there does not appear to be a
10 U.S.C. § 949a(b)(2)(C).
been preferred, the suspect or accused has the
remedy in case of violation. No person subject
right to have counsel present for questioning.
to the UCMJ may compel any person to give
Section 948r provides that statements elicited
Once the right to counsel is invoked,
evidence before any military tribunal if the
through torture may not be entered into
questioning material to the allegations or
evidence is not material to the issue and may
evidence except to prove a charge of torture.
charges must stop. Mil. R. Evid. 305(d)(1).
tend to degrade him. 10 U.S.C. § 831.

---

CRS-35
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
The prosecutor must notify the defense of any
Statements obtained prior to the enactment of
incriminating statements made by the accused
the DTA through coercion that does not
that are relevant to the case prior to the
amount to torture is admissible if the military
arraignment. Motions to suppress such
judge finds that 1. The “totality of
statements must be made prior to pleading.
circumstances under which the statement was
Mil. R. Evid. 304.
made renders it reliable and possessing
Interrogations conducted by foreign officials
sufficient probative value” and
do not require warnings or presence of
2. “the interests of justice would best be
counsel unless the interrogation is instigated
served” by admission of the statement.
or conducted by U.S. military personnel.
Mil. R. Evid. 305.
Statements taken after passage of the DTA
would be admissible if the military judge also
finds that
3. “the interrogation methods used to obtain
the statement do not violate the cruel,
unusual, or inhumane treatment or
punishment prohibited by the Fifth, Eighth,
and Fourteenth Amendments to the U.S.
Constitution.” 10 U.S.C. § 948r.

---

CRS-36
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
Freedom from
“Evidence obtained as a result of an unlawful
Not provided; no exclusionary rule appears to
Not provided. Evidence is generally
Unreasonable
search or seizure ... is inadmissible against the be available.
permitted if it has probative value to a
Searches &
accused ...” unless certain exceptions apply.
reasonable person, unless it is obtained under
Seizures
Mil. R. Evid. 311.
However, monitored conversations between
circumstances that would render it unreliable.
the detainee and defense counsel may not be
10 U.S.C. §§ 948r, 949a.
“Authorization to search” may be oral or
communicated to persons involved in
written, and may be issued by a military judge prosecuting the accused or used at trial.
Procedural rules may provide that evidence
or an officer in command of the area to be
M.C.O. No. 3.
gathered without authorization or a search
searched, or if the area is not under military
warrant may be admitted into evidence. 10
control, with authority over persons subject to No provisions for determining probable cause U.S.C. § 949a.
military law or the law of war. It must be
or issuance of search warrants are included.
based on probable cause.
Mil. R. Evid. 315.
Insofar as searches and seizures take place
outside of the United States against non-U.S.
Interception of wire and oral communications
persons, the Fourth Amendment may not
within the United States requires judicial
apply. United States v. Verdugo-Urquidez,
application in accordance with 18 U.S.C. §§
494 U.S. 259 (1990).
2516 et seq.
Mil. R. Evid. 317.
A search conducted by foreign officials is
unlawful only if the accused is subject to
“gross and brutal treatment.” Mil. R. Evid.
311(c).
Assistance of
The defendant has a right to military counsel
M.C.O. 1 provides that the accused must be
At least one qualifying military defense
Effective
at government expense. The defendant may
represented “at all relevant times”
counsel is to be detailed “as soon as
Counsel
choose counsel, if that attorney is reasonably
(presumably, once charges are approved until
practicable after the swearing of charges….”
available, and may hire a civilian attorney in
findings are final — but not for individuals
10 U.S.C. § 948k.
addition to military counsel. Art 38, UCMJ,
who are detained but not charged) by detailed
10 U.S.C. § 838.
defense counsel.
The accused may also hire a civilian attorney
§ 4(C)(4).
who is
Appointed counsel must be certified as
1. a U.S. citizen,
qualified and may not be someone who has
The accused is assigned a military judge
2. admitted to the bar in any state, district, or
taken any part in the investigation or
advocate to serve as counsel, but may request
possession,
prosecution, unless explicitly requested by the to replace or augment the detailed counsel
3. has never been disciplined,

---

CRS-37
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
defendant.
with a specific officer, if that person is
4. has a SECRET clearance (or higher, if
Art. 27, UCMJ, 10 U.S.C. § 827.
available. § 4(C)(3)(a).
necessary for a particular case), and
5. agrees to comply with all applicable rules.
In espionage cases or other cases in which
The accused may also hire a civilian attorney
10 U.S.C. § 949c(b)(3).
classified information may be necessary to
who is a U.S. citizen, is admitted to the bar in
prove a charge or defense, the defense is
any state, district, or possession, has a
If civilian counsel is hired, the detailed
permitted to request the information and to
SECRET clearance (or higher, if necessary for military counsel serves as associate counsel.
have the military judge review in camera
a particular case), and agrees to comply with
10 U.S.C. § 949c(b)(5).
information for which the government asserts
all applicable rules. The civilian attorney does
a privilege. The accused and the defense
not replace the detailed counsel, and is not
No attorney-client privilege is mentioned.
attorney are entitle to be present for such in
guaranteed access to classified evidence or
camera hearings, and although the
closed hearings. § 4(C)(3)(b).
Adverse personnel actions may not be taken
government is not generally required to give
against defense attorneys because of the zeal
them access to the classified information
Defense Counsel may present evidence at trial with which such officer, in acting as counsel,
itself, the military judge may disapprove of
and cross-examine witnesses for the
represented any accused before a military
any summary the government provides for the prosecution. § 5(I).
commission.…”
purpose of permitting the defense to prepare

10 U.S.C. § 949b.
adequately for the hearing, and may subject
The Appointing Authority must order such
the government to sanctions if it declines to
resources be provided to the defense as he
make the necessary information available.
deems necessary for a full and fair trial.” §
Mil. R. Evid. 505.
5(H).

The military judge may order all persons
Communications between defense counsel and
requiring security clearances to cooperate
the accused are subject to monitoring by the
with investigatory personnel in any
government. Although information obtained
investigations which are necessary to obtain
through such monitoring may not be used as
the security clearance necessary to participate
evidence against the accused, M.C.I. No. 3,
in the proceedings.
the monitoring could arguably have a chilling
Mil. R. Evid. 505(g).
effect on attorney-client conversations,
possibly hampering the ability of defense
The attorney-client privilege is honored.
counsel to provide effective representation.
Mil. R. Evid. 502.

---

CRS-38
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
Right to
The right to indictment by grand jury is
Probably not applicable to military
Article 32, UCMJ, hearings are expressly
Indictment and explicitly excluded in “cases arising in the
commissions, provided the accused is an
made inapplicable. 10 U.S.C.
Presentment
land or naval forces.”
enemy belligerent.
§ 948b(d)(1)(C).
Amendment V.
See Ex parte Quirin, 317 U.S. 1 (1942).
Charges and specifications against an accused
However, a process similar to a grand jury is
The Office of the Chief Prosecutor prepares
are to be signed by a person subject to UCMJ
required by article 32, UCMJ. 10 U.S.C. §
charges for referral by the Appointing
swearing under oath that the signer has
832.
Authority.
“personal knowledge of, or reason to believe,
§ 4(B).
the matters set forth therein,” and that they
Whenever an offense is alleged, the
are “true in fact to the best of his knowledge
commander is responsible for initiating a
There is no requirement for an impartial
and belief.” The accused is to be informed of
preliminary inquiry and deciding how to
investigation prior to a referral of charges. The the charges and specifications against him as
dispose of the offense.
Commission may adjust a charged offense in a soon as practicable after charges are sworn.
R.C.M. 303-06.
manner that does not change the nature or
10 U.S.C. § 948q.
The accused must be informed of the charges
increase the seriousness of the charge. § 6(F).
as soon as practicable.
Art. 30, UCMJ, 10 U.S.C. § 830.
Right to
Charges and specifications must be signed
Copies of approved charges are provided to
The trial counsel assigned is responsibility for
Written
under oath and made known to the accused as
the accused and Defense Counsel in English
serving counsel a copy of the charges upon
Statement of
soon as practicable. Art. 30, UCMJ, 10
and another language the accused understands, the accused, in English and, if appropriate, in
Charges
U.S.C. § 830.
if appropriate. § 5(A).
another language that the accused
understands, “sufficiently in advance of trial
to prepare a defense.” 10 U.S.C. § 948s.
Right to be
The presence of the accused is required during The accused may be present at every stage of
The accused has the right to be present at all
Present at Trial arraignment, at the plea, and at every stage of
trial before the Commission unless the
sessions of the military commission except
the court-martial unless the accused waives
Presiding Officer excludes the accused
deliberation or voting, unless exclusion of the
the right by voluntarily absenting him or
because of disruptive conduct or for security
accused is permitted under § 949d. 10 U.S.C.
herself from the proceedings after the
reasons, or “any other reason necessary for the § 949a(b)(1)(B).
arraignment or by persisting in conduct that
conduct of a full and fair trial.” §§ 4(A)(5)(a);
justifies the trial judge in ordering the removal 5(K); 6B(3).
The accused may be excluded from attending
of the accused from the proceedings.
portions of the proceeding if the military
R.C.M. 801.
judge determines that the accused persists in
disruptive or dangerous conduct. 10 U.S.C. §
The government may introduce redacted or
949d(e).
summarized versions of evidence to be

---

CRS-39
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
substituted for classified information properly
claimed under privilege, but there is no
provision that would allow court-martial
members (other than the non-voting military
judge) to view evidence that is not seen by the
accused. Mil. R. Evid. 505.
Prohibition
Courts-martial will not enforce an ex post
Not provided, but may be implicit in
Crimes punishable by military commissions
against Ex Post facto law, including increasing amount of pay restrictions on jurisdiction over offenses. See
under the new chapter are contained in
Facto Crimes
to be forfeited for specific crimes.
§ 3(B).
subchapter VII. It includes the crime of
United States v. Gorki, 47 M.J. 370 (1997).
conspiracy, which a plurality of the Supreme
M.C.I. No. 2 § 3(A) provides that “no offense
Court in Hamdan v. Rumsfeld viewed as
is cognizable in a trial by military commission invalid as a charge of war crimes. 548 U.S.
if that offense did not exist prior to the
__ (2006).
conduct in question.”
The Act declares that it “codif[ies] offenses
that have traditionally been triable by military
commissions,” and that “because the [defined
crimes] (including provisions that incorporate
definitions in other provisions of law) are
declarative of existing law, they do not
preclude trial for crimes that occurred before
the date of enactment.” 10 U.S.C. § 950p.
The bill expressly provides jurisdiction over
the defined crimes, whether committed prior
to, on or after September 11, 2001. 10 U.S.C.
§ 948d.
Double jeopardy clause applies.
The accused may not be tried again by any
“No person may, without his consent, be tried
Protection
See Wade v. Hunter, 336 US 684, 688-89
Commission for a charge once a
by a commission a second time for the same
against Double
(1949).
Commission’s finding becomes final.
offense.” Jeopardy attaches when a guilty
Jeopardy
Art. 44, UCMJ prohibits double jeopardy,
(Jeopardy appears to attach when the finding
finding becomes final after review of the case
provides for jeopardy to attach after
becomes final, at least with respect to
has been fully completed. 10 U.S.C. § 949h.
introduction of evidence.
subsequent U.S. military commissions.)
10 U.S.C. § 844.
§ 5(P).
The United States may not appeal a an order
or ruling that amounts to a finding of not

---

CRS-40
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
General court-martial proceeding is
However, although a finding of Not Guilty by
guilty. 10 U.S.C. § 950d(a)(2).
considered to be a federal trial for double
the Commission may not be changed to
jeopardy purposes. Double jeopardy does not Guilty, either the reviewing panel, the
The convening authority may not revise
result from charges brought in state or foreign Appointing Authority, the Secretary of
findings or order a rehearing in any case to
courts, although court-martial in such cases is
Defense, or the President may return the case
reconsider a finding of not guilty of any
disfavored.
for “further proceedings” prior to the findings’ specification or a ruling which amounts to a
U. S. v. Stokes, 12 M.J. 229 (C.M.A. 1982).
becoming final. If a finding of Not Guilty is
finding of not guilty, or reconsider a finding
vacated and retried, double jeopardy may be
of not guilty of any charge, unless there has
Once military authorities have turned service
implicated.
been a finding of guilty under a specification
member over to civil authorities for trial,
The order does not specify whether a person
laid under that charge, which sufficiently
military may have waived jurisdiction for that already tried by any other court or tribunal
alleges a violation. The convening authority
crime, although it may be possible to charge
may be tried by a military commission under
may not increase the severity of the sentence
the individual for another crime arising from
the M.O. The M.O. reserves for the President
unless the sentence prescribed for the offense
the same conduct.
the authority to direct the Secretary of Defense is mandatory.
See 54 AM. JUR. 2D, Military and Civil
to transfer an individual subject to the M.O. to 10 U.S.C. § 950b(d)(2)(B).
Defense §§ 227-28.
another governmental authority, which is not
precluded by the order from prosecuting the
individual. This subsection could be read to
authorize prosecution by federal authorities
after the individual was subject to trial by
military commission, although a federal court
would likely dismiss such a case on double
jeopardy grounds.
M.O. § 7(e).
In general, accused must be brought to trial
The Commission is required to proceed
There is no right to a speedy trial. Article 10,
Speedy &
within 120 days of the preferral of charges or
expeditiously, “preventing any unnecessary
UCMJ, 10 U.S.C. § 810, is expressly made
Public Trial
the imposition of restraint, whichever date is
interference or delay.”
inapplicable to military commissions. 10
earliest.
§ 6(B)(2).
U.S.C. § 948b(c).
R.C.M. 707(a).
The right to a public trial applies in courts-
Failure to meet a specified deadline does not
The military judge may close all or part of a
martial but is not absolute.
create a right to relief. § 10.
trial to the public only after making a
R.C.M. 806.
determination that such closure is necessary
The military trial judge may exclude the
The rules do not prohibit detention without
to protect information, the disclosure of
public from portions of a proceeding for the
charge, or require charges to be brought within which would be harmful to national security

---

CRS-41
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
purpose of protecting classified information if a specific time period.
interests or to the physical safety of any
the prosecution demonstrates an overriding
Proceedings “should be open to the maximum
participant.
need to do so and the closure is no broader
extent possible,” but the Appointing Authority 10 U.S.C. § 949d(d).
than necessary.
has broad discretion to close hearings, and
United States v. Grunden, 2 M.J. 116 (CMA
may exclude the public or accredited press
1977); Mil. R. Evid. 505(j).
from open proceedings.
§ 6(B)(3).
Burden &
Members of court martial must be instructed
Commission members may vote for a finding
Commission members are to be instructed
Standard of
that the burden of proof to establish guilt is
of guilty only if convinced beyond a
that the accused is presumed to be innocent
Proof
upon the government and that any reasonable
reasonable doubt, based on evidence admitted
until his “guilt is established by legal and
doubt must be resolved in favor of the
at trial, that the accused is guilty.
competent evidence beyond reasonable
defendant.
§§ 5(C); 6(F).
doubt”; that any reasonable doubt as to the
R.C.M. 920(e).
guilt of the accused must be “resolved in
The burden of proof of guilt is on the
favor of the accused and he must be
prosecution, § 5(C); however, M.C.I. No. 2
acquitted”; that reasonable doubt as to the
states that element of wrongfulness of an
degree of guilt must be resolved in favor of
offense is to be inferred absent evidence to the the lower degree as to which there is no
contrary. M.C.I. No. 2 § 4(B).
reasonable doubt; and that the burden of proof
is upon the United States. 10 U.S.C. § 949l.
Two-thirds of the members must concur on a
finding of guilty, except in capital cases. 10
U.S.C. § 949m.
The military judge is to exclude any evidence
the probative value of which is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
members of the commission, or by
considerations of undue delay, waste of time,
or needless presentation of cumulative
evidence.
10 U.S.C. § 949a.

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CRS-42
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
Privilege
No person subject to the UCMJ may compel
The accused is not required to testify, and the
“No person shall be required to testify against
Against Self-
any person to answer incriminating questions. commission may draw no adverse inference
himself at a commission proceeding.” 10
Incrimination
Art. 31(a) UCMJ, 10 U.S.C. § 831(a).
from, a refusal to testify.
U.S.C. § 948r.
§ 5(F).
Defendant may not be compelled to give
Adverse inferences drawn from a failure to
testimony that is immaterial or potentially
However, there is no rule against the use of
testify are not expressly prohibited; however,
degrading.
coerced statements as evidence.
members are to be instructed that “the
Art. 31(c), UCMJ, 10 U.S.C. § 831(c).
accused must be presumed to be innocent
There is no specific provision for immunity of until his guilt is established by legal and
No adverse inference is to be drawn from a
witnesses to prevent their testimony from
competent evidence” 10 U.S.C. § 949l.
defendant’s refusal to answer any questions or being used against them in any subsequent
testify at court-martial. Mil. R. Evid. 301(f).
legal proceeding; however, under 18 U.S.C.
There does not appear to be a provision for
Witnesses may not be compelled to give
§§ 6001 et seq., a witness required by a
immunity of witnesses.
testimony that may be incriminating unless
military tribunal to give incriminating
granted immunity for that testimony by a
testimony is immune from prosecution in any
general court-martial convening authority, as
criminal case, other than for perjury, giving
authorized by the Attorney General, if
false statements, or otherwise failing to
required. 18 U.S.C. § 6002; R.C.M. 704.
comply with the order. 18 U.S.C. §§6002;
6004.

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CRS-43
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
Right to
Hearsay rules apply as in federal court.
Defense Counsel may cross-examine the
“Defense counsel may cross-examine each
Examine or
Mil. R. Evid. 801 et seq.
prosecution’s witnesses who appear before the witness for the prosecution who testifies
Have Examined In capital cases, sworn depositions may not be Commission. § 5(I).
before the commission.”
Adverse
used in lieu of witness, unless court-martial is
10 U.S.C. § 949c.
Witnesses
treated as non-capital or it is introduced by the However, the Commission may also permit
defense.
witnesses to testify by telephone or other
In the case of classified information, the
Art. 49, UCMJ, 10 U.S.C. § 849.
means not requiring the presence of the
military judge may authorize the government
The government may claim a privilege not to
witness at trial, in which case cross-
to delete specified portions of evidence to be
disclose classified evidence to the accused,
examination may be impossible.
made available to the accused, or may allow
and the military judge may authorize the
§ 6(D)(2).
an unclassified summary or statement setting
deletion of specified items of classified
forth the facts the evidence would tend to
information, substitute a portion or summary,
In the case of closed proceedings or classified
prove, to the extent practicable in accordance
or statement admitting relevant facts that the
evidence, only the detailed defense counsel
with the rules used at general courts-martial.
evidence would tend to prove, unless the
may be permitted to participate. Hearsay
10 U.S.C. § 949d(f)(2)(A).
military judge determines that disclosure of
evidence is admissible as long as the
classified information itself is necessary to
Commission determines it would have
Hearsay evidence not admissible under the
enable the accused to prepare for trial.
probative value to a reasonable person. §
rules of evidence applicable in trial by general
Mil. R. Evid. 505(g).
6(D)(1).
courts-martial is admissible only if the

proponent notifies the adverse party,
The Commission may consider testimony
sufficiently in advance of its intention to offer
from prior trials as well as sworn and unsworn the evidence, and the particulars of the
written statements, apparently without regard
evidence (including information on the
to the availability of the declarant, in apparent general circumstances under which the
contradiction with 10 U.S.C. § 849.
evidence was obtained) unless the party
§ 6(D)(3).
opposing the admission of the evidence
“clearly demonstrates that the evidence is
unreliable or lacking in probative value.” 10
U.S.C. § 949a(b)(2)(E).

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CRS-44
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
Right to
Defendants before court-martial have the right The accused may obtain witnesses and
Defense counsel is to be afforded a
Compulsory
to compel appearance of witnesses necessary
documents “to the extent necessary and
reasonable opportunity to obtain witnesses
Process to
to their defense.
reasonably available as determined by the
and other evidence, including evidence in the
Obtain
R.C.M. 703.
Presiding Officer.”
possession of the United States, according to
Witnesses
§ 5(H).
DOD regulations. The military commission is
Process to compel witnesses in court-martial
authorized to compel witnesses under U.S.
cases is to be similar to the process used in
The Commission has the power to summon
jurisdiction to appear. The military judge
federal courts.
witnesses as requested by the defense. §
may authorize discovery in accordance with
Art. 46, UCMJ, 10 U.S.C. § 846.
6(A)(5).
rules prescribed by the Secretary of Defense
to redact classified information or to provide
The power to issue subpoenas is exercised by
an unclassified summary or statement
the Chief Prosecutor; the Chief Defense
describing the evidence. The trial counsel is
Counsel has no such authority. M.C.I. Nos. 3- obligated to disclose exculpatory evidence of
4.
which he is aware to the defense, but such
information, if classified, is available to the
accused only in a redacted or summary form,
and only if making the information available
is possible without compromising intelligence
sources, methods, or activities, or other
national security interests. 10 U.S.C. § 949j.
Right to Trial
A qualified military judge is detailed to
The Presiding Officer is appointed directly by
Military judges must take an oath to perform
by Impartial
preside over the court-martial. The convening the Appointing Authority, which decides all
their duties faithfully. 10 U.S.C. § 949g.
Judge
authority may not prepare or review any
interlocutory issues. There do not appear to
report concerning the performance or
be any special procedural safeguards to ensure The convening authority is prohibited from
effectiveness of the military judge.
impartiality, but challenges for cause have
preparing or reviewing any report concerning
Art. 26, UCMJ, 10 U.S.C. § 826.
been permitted.
the effectiveness, fitness, or efficiency of a
§ 4(A)(4).
military judge. 10 U.S.C. § 948j(a).
Article 37, UCMJ, prohibits unlawful
influence of courts-martial through
The presiding judge, who decides issues of
A military judge may not be assigned to a
admonishment, censure, or reprimand of its
admissibility of evidence, does not vote as
case in which he is the accuser, an
members by the convening authority or
part of the commission on the finding of guilt
investigator, a witness, or a counsel.
commanding officer, or any unlawful attempt
or innocence.
10 U.S.C. § 948j(c).

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CRS-45
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
by a person subject to the UCMJ to coerce or
Article 37, UCMJ, provides that no person
The military judge may not consult with the
influence the action of a court-martial or
subject to the UCMJ “may attempt to coerce
members of the commission except in the
convening authority.
or, by any unauthorized means, influence the
presence of the accused, trial counsel, and
Art. 37, UCMJ, 10 U.S.C. § 837.
action of a court-martial or any other military
defense counsel, nor may he vote with the
tribunal or any member thereof, in reaching
members of the commission.
the findings or sentence in any case, or the
10 U.S.C. § 948j(d).
action of any convening, approving, or
reviewing authority with respect to his judicial Convening authority may not censure,
acts.”
reprimand, or admonish the military judge.
10 U.S.C. § 837.
No person may attempt to coerce or use
M.C.I. No. 9 clarifies that Art. 37 applies with unauthorized means to influence the action of
respect to members of the review panel.
a commission.
M.C.I No. 9 § 4(F).
10 U.S.C. § 949b.
The military judge may be challenged for
cause. 10 U.S.C. § 949f.
Right to Trial
A military accused has no Sixth Amendment
The commission members are appointed
Military commission members must take an
By Impartial
right to a trial by petit jury.
directly by the Appointing Authority. While
oath to perform their duties faithfully. 10
Jury
Ex Parte Quirin, 317 U.S. 1, 39-40 (1942)
the Commission is bound to proceed
U.S.C. § 949g.
(dicta).
impartially, there do not appear to be any
special procedural safeguards designed to
The accused may make one peremptory
However, “Congress has provided for trial by
ensure their impartiality. However,
challenge, and may challenge other members
members at a court-martial.”
defendants have successfully challenged
for cause. 10 U.S.C. § 949f.
United States v. Witham, 47 MJ 297, 301
members for cause. § 6(B).
(1997); Art. 25, UCMJ, 10 U.S.C. § 825.
No convening authority may censure,
The Sixth Amendment requirement that the
reprimand, or admonish the commission or
jury be impartial applies to court-martial
any member with respect to the findings or
members and covers not only the selection of
sentence or the exercise of any other
individual jurors, but also their conduct during
functions in the conduct of the proceedings.
the trial proceedings and the subsequent

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CRS-46
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
deliberations.
No person may attempt to coerce or, by any
United States v. Lambert, 55 M.J. 293 (2001).
unauthorized means, influence the action of a
The absence of a right to trial by jury
commission or any member thereof, in
precludes criminal trial of civilians by court-
reaching the findings or sentence in any case.
martial.
Reid v. Covert, 354 U.S. 1 (1957); Kinsella v.
Military commission duties may not be
United States ex rel. Singleton, 361 U.S. 234
considered in the preparation of an
(1960).
effectiveness reports or any similar document
with potential impact on career-advancement.
10 U.S.C. § 949b.
Right to Appeal Those convicted by court-martial have an
A review panel appointed by the Secretary of
The accused may submit matters for
to Independent
automatic appeal to their respective service
Defense reviews the record of the trial in a
consideration by the convening authority with
Reviewing
courts of appeal, depending on the severity of
closed conference, disregarding any
respect to the authenticated findings or
Authority
the punishment.
procedural variances that would not materially sentence of the military commission. The
Art. 66, UCMJ; 10 U.S.C. § 866.
affect the outcome of the trial, and
convening authority must review timely
recommends its disposition to the Secretary of submissions prior to taking action. 10 U.S.C.
Decisions by service appellate courts are
Defense. Although the Defense Counsel has
§ 950b.
reviewable on a discretionary basis by the
the duty of representing the interests of the
Court of Appeals for the Armed Forces
accused during any review process, the review The accused may appeal a final decision of
(CAAF), a civilian court composed of five
panel need not consider written submissions
the military commission with respect to issues
civilian judges appointed by the President.
from the defense, nor does there appear to be
of law to the Court of Military Commission
Art. 67, UCMJ; 10 U.S.C. § 867.
an opportunity to rebut the submissions of the
Review, a new body comprised of appellate
CAAF decisions are subject to Supreme Court prosecution. If the majority of the review
military judges who meet the same
review by writ of certiorari.
panel forms a “definite and firm conviction
qualifications as military judges or
28 U.S.C. § 1259.
that a material error of law occurred,” it may
comparable qualifications for civilian judges.
The writ of habeas corpus provides the
return the case to the Appointing Authority for 10 U.S.C. § 950f.
primary means by which those sentenced by
further proceedings.
military court, having exhausted military
§ 6(H)(4).
Once these appeals are exhausted, the accused
appeals, can challenge a conviction or
may appeal the final decision to the United
sentence in a civilian court. The scope of
The review panel recommendation does not
States Court of Appeals for the District of
matters that a court will address is narrower
appear to be binding. The Secretary of
Columbia Circuit. Appellate court decisions

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CRS-47
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
than in challenges of federal or state
Defense may serve as Appointing Authority
may be reviewed by the Supreme Court under
convictions.
and as the final reviewing authority, as
writ of certiorari.
Burns v. Wilson, 346 U.S. 137 (1953).
designated by the President.
10 U.S.C. § 950g.
Although the M.O specifies 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
The right to appeal a conviction resulting in a
The accused is permitted to make a statement
Military commissions may adjudge “any
against
death sentence may not be waived.
during sentencing procedures. § 5(M).
punishment not forbidden by [the MCA] or
Excessive
R.C.M. 1110.
the law of war, including the penalty of
Penalties
Death may only be adjudged for certain
The death sentence may be imposed only on
death….” 10 U.S.C. § 948d.
crimes where the defendant is found guilty by the unanimous vote of a seven-member panel.
unanimous vote of court-martial members
§ 6(F).
A vote two-thirds of the members present is
present at the time of the vote. Prior to

required for sentences of up to 10 years.
arraignment, the trial counsel must give the
The commission may only impose a sentence
Longer sentences require the concurrence of
defense written notice of aggravating factors
that is appropriate to the offense for which
three-fourths of the members present. The
the prosecution intends to prove.
there was a finding of guilty, including death,
death penalty must be approved unanimously
R.C.M. 1004.
imprisonment, fine or restitution, or “other
on a unanimous guilty verdict. Where the
A conviction of spying during time of war
such lawful punishment or condition of
death penalty is sought, a panel of 12
under article 106, UCMJ, carries a mandatory punishment as the commission shall determine members is required (unless not “reasonably
death penalty.
to be proper.” § 6(G).
available”). The death penalty must be
10 U.S.C. § 906.

expressly authorized for the offense, and the
If the Secretary of Defense has the authority to charges must have expressly sought the
conduct the final review of a conviction and
penalty of death. 10 U.S.C. § 949m.
sentence, he may mitigate, commute, defer, or
suspend, but not increase, the sentence.

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CRS-48
General Courts Martial
Military Commission Order No. 1 (M.C.O.)
Military Commissions Act of 2006
However, he may disapprove the findings and
An accused who is sentenced to death may
return them for further action by the military
waive his appeal, but may not withdraw an
commission.
appeal. 10 U.S.C. § 950c.
§ 6(H).
The death sentence may not be executed until
the commission proceedings have been finally
adjudged lawful and the time for filing a writ
has expired or the writ has been denied; and
the President approves the sentence. 10
U.S.C. § 950i.

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