The Military Commissions Act of 2006:
Background and Proposed Amendments
Jennifer K. Elsea
Legislative Attorney
August 11, 2009
Congressional Research Service
7-5700
www.crs.gov
R40752
CRS Report for Congress
P
repared for Members and Committees of Congress
The Military Commissions Act of 2006: Background and Proposed Amendments
Summary
On November 13, 2001, President Bush issued a Military Order (M.O.) authorizing trial by
military commission of certain non-citizens suspected of participating in the war against
terrorism. The Supreme Court struck down military commissions established pursuant to the
M.O. as inconsistent with the Uniform Code of Military Justice (UCMJ). 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 UCMJ and possibly
U.S. international obligations. DOD published regulations to govern military commissions
pursuant to the MCA. Three prosecutions under those regulations resulted in convictions.
Shortly after taking office, President Obama took action to suspend the operation of military
commissions pending a review of all Guantanamo detentions for the purpose of assessing options
for the lawful disposition of each detainee. The Detention Policy Task Force set up to conduct the
review issued a preliminary report announcing that while federal criminal court would be the
preferred forum for trying enemy terrorists who are suspected of having violated U.S. criminal
law, military commissions, with significant reforms, would remain an option for prosecuting
violations of the law of war.
This report provides a background and analysis of military commissions rules under the MCA.
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 provided in the MCA.
The report identifies pending legislation, including Senate-passed S. 1390, and describes
proposals suggested by the Obama Administration. Finally, the report provides two charts
comparing the MCA with proposed legislation. The first chart describes the composition and
powers of the military tribunals, as well as their jurisdiction. The second chart, which compares
procedural safeguards under the MCA with those established for courts-martial as well as
proposed amendments to the MCA, 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. For similar charts comparing military commissions as envisioned under the MCA to the
rules that had been established by DOD for military commissions and to general military courts-
martial conducted under the UCMJ, see CRS Report RL33688, The Military Commissions Act of
2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform
Code of Military Justice, by Jennifer K. Elsea.
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The Military Commissions Act of 2006: Background and Proposed Amendments
Contents
Introduction ................................................................................................................................ 1
The Military Commissions Act of 2006 ....................................................................................... 4
Jurisdiction ........................................................................................................................... 5
Personal Jurisdiction ....................................................................................................... 6
Subject Matter Jurisdiction.............................................................................................. 8
Temporal and Spatial Jurisdiction.................................................................................. 11
Composition and Powers..................................................................................................... 12
Procedures Accorded the Accused ....................................................................................... 15
Open Hearing................................................................................................................ 15
Right to be Present ........................................................................................................ 16
Right to Counsel ........................................................................................................... 16
Evidentiary Matters............................................................................................................. 18
Discovery ..................................................................................................................... 19
Admissibility of Evidence ............................................................................................. 21
Coerced Statements....................................................................................................... 21
Hearsay......................................................................................................................... 23
Sentencing .......................................................................................................................... 25
Post-Trial Procedure............................................................................................................ 26
Review and Appeal ....................................................................................................... 26
Protection against Double Jeopardy............................................................................... 28
Proposed Legislation................................................................................................................. 29
Chart 1. Comparison of Military Commission Rules.................................................................. 32
Authority ............................................................................................................................ 32
Procedure............................................................................................................................ 32
Jurisdiction over Persons..................................................................................................... 33
Jurisdiction over Offenses ................................................................................................... 34
Composition ....................................................................................................................... 34
Chart 2. Comparison of Procedural Safeguards.......................................................................... 35
Presumption of Innocence ................................................................................................... 35
Right to Remain Silent (Freedom from Coerced Statements) ............................................... 36
Freedom from Unreasonable Searches and Seizures ............................................................ 37
Effective Assistance of Counsel........................................................................................... 38
Right to Indictment and Presentment ................................................................................... 39
Right to Written Statement of Charges................................................................................. 39
Right to be Present at Trial .................................................................................................. 40
Prohibition Against Ex Post Facto Crimes ........................................................................... 41
Protection Against Double Jeopardy.................................................................................... 42
Speedy and Public Trial....................................................................................................... 43
Burden and Standard of Proof ............................................................................................. 44
Privilege Against Self-Incrimination (Freedom from Compelled Testimony) ....................... 45
Right to Examine or Have Examined Adverse Witnesses (Hearsay Prohibition)................... 46
Right to Compulsory Process to Obtain Witnesses............................................................... 47
Right to Trial by Impartial Judge ......................................................................................... 48
Right to Trial by Impartial Jury ........................................................................................... 49
Right to Appeal to Independent Reviewing Authority .......................................................... 50
Protection Against Excessive Penalties ................................................................................ 51
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The Military Commissions Act of 2006: Background and Proposed Amendments
Contacts
Author Contact Information ...................................................................................................... 52
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The Military Commissions Act of 2006: Background and Proposed Amendments
Introduction
Shortly after combat operations began pursuant to the congressional authorization to use military
force in response to the terrorist attacks of September 11, 2001,1 President Bush issued a Military
Order (M.O.) authorizing trial by military commission of non-citizens suspected of terrorist acts
or associations who were to be designated as subject to the M.O.2 President Bush subsequently
determined that 20 of the detainees at the U.S. Naval Station in Guantánamo Bay held in
connection with the conflict were subject to the M.O., and 10 were eventually charged for trial
before military commissions.3 The M.O. specified that persons subject to it would have no
recourse to the U.S. court system to appeal a verdict or obtain any other sort of relief, but the
Supreme Court essentially invalidated that provision in its 2004 opinion, Rasul v. Bush.4
Military commissions are courts usually set up by military commanders in the field to try persons
accused of certain offenses during war.5 They may also try persons for ordinary crimes in cases of
martial law or military occupation, where regular civil courts are not able to function.6 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.7 Historically, military commissions have applied the same set of procedural
rules that applied in courts-martial.8 By statute, military commissions have long been available to
1 P.L. 107-40.
2 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism §1(a), 66 Fed. Reg. 57,833
(November 16, 2001) (hereinafter “M.O.”).
3 See Press Release, Department of Defense, President Determines Enemy Combatants Subject to His Military Order
(July 3, 2003), available at http://www.defenselink.mil/releases/2003/nr20030703-0173.html (last visited August 13,
2007). 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 August 13, 2007). 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 August 13, 2007).
4 Rasul v. Bush, 542 U.S. 466 (2004). 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 Bush Administration shortly thereafter indicated that
defendants were not intended to be precluded from petitioning a federal court for a writ of habeas. See Alberto R.
Gonzales, Martial Justice, Full and Fair, NEW YORK TIMES (op-ed), November 30, 2001. The government did not rely
on the M.O. as the legal basis for asserting detainees had no right to pursue writs of habeas corpus, but the Court’s
opinion served as a warning that military commission verdicts would be subject to collateral review. For a summary of
Rasul and related cases, see CRS Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of Opinions
Related to Detainees in the War on Terrorism, by Jennifer K. Elsea.
5 See CRS Report RL31191, Terrorism and the Law of War: Trying Terrorists as War Criminals before Military
Commissions, by Jennifer K. Elsea (providing a general background of U.S. history of military commissions).
6 See Hamdan v. Bush, 548 U.S. 557, 595 (2006). In looking at historical precedent, the Hamdan Court suggested, it is
important to distinguish which type of jurisdiction a military commission is exercising, although the distinction is often
blurred. Id. at 597 & note 7.
7 See U.S. Army Field Manual (FM) 27-10, The Law of Land Warfare, section 505(e) [hereinafter “FM 27-10”].
8 See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 841-42 (2d ed. 1920)(noting that “in the absence of any
statute or regulation,” the same principles and procedures commonly govern, though possibly more “liberally construed
and applied”); David Glazier, Note, Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military
Commission, 89 VA. L. REV. 2005 (2003).
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try “offenders or offenses designated by statute or the law of war.”9 For the most part, military
commissions have been employed where U.S. armed forces have established a military
government or martial law, as in the war with Mexico, the Civil War, the Philippine Insurrection,
and in occupied Germany and Japan after World War II.10
President Bush’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 Constitution as well as their rights under
international law, thereby undercutting the legitimacy of any verdicts rendered by the tribunals.
The Bush Administration established rules prescribing detailed procedural safeguards for the
tribunals.11 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.12 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.,13 or that the
Department of Defense may continue to detain persons who have been cleared by a military
commission.14 The Pentagon reportedly stated that its Inspector General (IG) looked into
allegations, made by military lawyers assigned as prosecutors to the military commissions, that
the proceedings were rigged to obtain convictions, but the IG did not substantiate the charges.15
Congress took no action with respect to military commissions until after the Supreme Court’s
Rasul decision. At the end of December 2005, Congress enacted the Detainee Treatment Act of
2005 (DTA).16 The DTA did not authorize military commissions, but amended title 28, U.S. Code
9 10 U.S.C. § 821. There are only two statutory offenses under the Uniform Code of Military Justice (UCMJ) 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 footnote 7, 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”).
10 For a review of military commission precedent, see David Glazier, Precedents Lost: The Neglected History of the
Military Commission, 46 VA. J. INT'L L. 5 (2005).
11 Military Commission Order No. 1 (“M.C.O. No. 1”), reprinted at 41 I.L.M. 725 (2002). A revision was issued
August 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.
12 See ACTL, Supplemental Report on Military Commissions for the Trial of Terrorists, October 2005, online at
http://www.actl.com/AM/Template.cfm?Section=Home&template=/CM/ContentDisplay.cfm&ContentID=2152.
13 The Bush Administration did not explicitly use this authority; instead, it characterized 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.”)
14 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 former DOD chief counsel William J. Haynes II to a New York Times
reporter).
15 See Neil A. Lewis, Two Prosecutors Faulted Trials For Detainees, NY TIMES, August 1, 2005, at A1.
16 Title 10 of P.L. 109-148 and Title 14 of P.L. 109-163. For an analysis of the case, see CRS Report RS22466,
Hamdan v. Rumsfeld: Military Commissions in the “Global War on Terrorism,” by Jennifer K. Elsea.
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The Military Commissions Act of 2006: Background and Proposed Amendments
to revoke all judicial jurisdiction over habeas claims by persons detained as “enemy combatants,”
and it created jurisdiction in the Court of Appeals for the District of Columbia Circuit to hear
appeals of final decisions of military commissions. The Supreme Court, in Hamdan v. Rumsfeld,17
invalidated the military commission system established by presidential order, holding that
although Congress had in general authorized the use of military commissions, such commissions
were required to follow procedural rules as similar as possible to courts-martial proceedings, as
required by the Uniform Code of Military Justice (UCMJ).18 In response, Congress promptly
passed the Military Commissions Act of 2006 (MCA)19 to authorize military commissions and
establish procedural rules that are modeled after, but depart from in some significant ways, the
UCMJ.20
The Department of Defense issued regulations for the conduct of military commissions pursuant
to the MCA.21 One detainee, David Matthew Hicks of Australia, was convicted of material
support to terrorism pursuant to a plea agreement in 2007.22 In 2008, Salim Hamdan was found
guilty of one count of providing material support for terrorism and sentenced to 66 months’
imprisonment, but credited with five years’ time served.23 Ali Hamza Ahmad Suliman al Bahlul
of Yemen was found guilty of multiple counts of conspiracy and solicitation to commit certain
war crimes and of providing material support for terrorism in connection with his role as al
Qaeda’s “propaganda chief.”24 He refused representation and boycotted most of his trial, and was
subsequently sentenced to life imprisonment.
On January 22, 2009, President Barack Obama issued an Executive Order requiring that the
Guantanamo detention facility be closed no later than a year from the date of the Order.25 The
Order requires specified officials to review all Guantanamo detentions to assess whether the
detainee should continue to be held by the United States, transferred or released to another
country, or be prosecuted by the United States for criminal offenses.26 During the review period,
17 Hamdan v. Rumsfeld, 548 U.S. 557 (2006), rev’g 415 F.3d 33 (D.C. Cir. 2005). For an analysis of the case, see CRS
Report RS22466, Hamdan v. Rumsfeld: Military Commissions in the “Global War on Terrorism,” by Jennifer K.
Elsea.
18 10 U.S.C. § 801 et seq. Military commissions were said to be authorized pursuant to 10 U.S.C. §§ 821 and 836.
19 P.L. 109-366, 120 Stat. 2600, codified at chapter 47a of title 10, U.S. Code.
20 The MCA also amended the DTA to eliminate jurisdiction for pending habeas cases, P.L. 109-366 § 7, but the
Supreme Court held that provision to be unconstitutional. Boumediene v. Bush, 533 U.S. __, 123 S. Ct. 2229 (2008)
21 Department of Defense, The Manual for Military Commissions, January 18, 2007, available at
http://www.defenselink.mil/news/MANUAL FOR MILITARY COMMISSIONS 2007 signed.pdf.
22 Department of Defense, “Detainee Convicted of Terrorism Charge at Guantanamo Trial,” press release, March 30,
2007, http://www.defenselink.mil/releases/release.aspx?releaseid=10678. Hicks was sentenced to seven years’
confinement. As part of his pretrial agreement, his sentence was limited to nine months confinement to be served in
Australia, with six years and three months suspended.
23 Department of Defense, “Detainee Transfer Announced,” press release, November 28, 2008,
http://www.defenselink.mil/releases/release.aspx?releaseid=12372.
24 Department of Defense, “Detainee Sentenced To Life In Prison,” press release, November 3, 2008,
http://www.defenselink.mil/releases/release.aspx?releaseid=12331.
25 Executive Order 13492, “Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and
Closure of Detention Facilities,” 74 Federal Register 4897, January 22, 2009 [hereinafter “Executive Order”].
26 Id. at § 4. The Order specifies that the review shall be conducted by the Attorney General (who shall also coordinate
the review process), the Secretary of Defense, the Secretary of State, the Secretary of Homeland Security, the Director
of National Intelligence, the Chairman of the Joint Chiefs of Staff, as well as other officers or full- or part-time
employees of the U.S. government (as determined by the Attorney General, with the concurrence of the relevant
department head) with intelligence, counterterrorism, military, or legal expertise.
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the Secretary of Defense is required to take steps to ensure that all proceedings before military
commissions and the United States Court of Military Commission Review are halted, although
some pretrial proceedings have continued to take place. Fifteen detainees currently stand charged
under the MCA, while charges were dismissed without prejudice against five other detainees,27
one of whom has been ordered released by a federal judge. One case was moved to a federal
district court.
In May, 2009, the Obama Administration announced that it was considering restarting the military
commission system with some changes to the procedural rules.28 The Department of Defense
informed Congress about modifications to the Manual for Military Commissions, to take effect
July 14, 2009.29
President Obama’s Detention Policy Task Force issued a preliminary report July 20, 2009,
reaffirming that the White House considers military commissions to be an appropriate forum for
trying some cases involving suspected violations of the laws of the war, although federal criminal
court would be the preferred forum for trials of detainees.30 The disposition of each case referred
is to be assigned to a team comprised of DOJ and DOD personnel, including prosecutors from the
Office of Military Commissions. Appended to the report was a set of criteria to govern the
disposition of cases involving Guantanamo detainees. This protocol identifies three broad
categories of factors to be taken into consideration:
• Strength of interest, namely, the nature and gravity of offenses or underlying
conduct; identity of victims; location of offense; location and context in which
individual was apprehended; and the conduct of the investigation.
• Efficiency, namely, protection of intelligence source and methods; venue; number
of defendants; foreign policy concerns; legal or evidentiary problems; efficiency
and resource concerns.
• Other prosecution considerations, namely, the extent to which the forum and
offenses that can be tried there permit a full presentation of the wrongful conduct,
and the available sentence upon conviction.
Federal prosecutors are to evaluate their cases under “traditional principles of federal
prosecution.”
The Military Commissions Act of 2006
The Military Commissions Act of 2006 (“MCA”) grants the Secretary of Defense express
authority to convene military commissions to prosecute those fitting the definition under the
MCA of “alien unlawful enemy combatants.”31 The Secretary delegated the authority to a
27 Brookings Institute, The Current Detainee Population of Guantánamo: An Empirical Study, update posted June 23,
2009, available at http://www.brookings.edu/reports/2008/1216_detainees_wittes.aspx.
28 Peter Finn, Obama Set to Revive Military Commissions, WASH. POST, May 9, 2009.
29 Letter from Robert M. Gates, Secretary of Defense, to Senator Carl Levin, May 15, 2009. A copy is available at
http://www.nimj.org/documents/2009 DoD MMC Changes.pdf.
30 Memorandum from the Detention Policy Task Force to the Attorney General and the Secretary of Defense, July 20,
2009, http://www.nimj.com/display.aspx?base=MilitaryCommissions&ID=255.
31 10 U.S.C. § 948h.
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specially appointed “convening authority,” who has responsibility for accepting or rejecting
charges referred by the prosecution team, convening military commissions for trials, detailing
military commission members and other personnel, approving requests from trial counsel to
communicate with the media, approving requests for expert witnesses, approving plea
agreements, carrying out post-trial reviews and forwarding cases for review, along with other
duties spelled out in the MCA or in DOD’s Regulation for Trial by Military Commission.32
The MCA eliminates the requirement for military commissions to conform to either of the two
uniformity requirements in article 36, UCMJ, which President Bush’s military commissions were
held in Hamdan to violate. Instead, it establishes chapter 47A in title 10, U.S. Code and excepts
military commissions under this chapter from the requirements in article 36.33 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 enacted 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.”34 It expressly exempts these 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
chapter 47A.35 Other provisions of the UCMJ are to apply to trial by military commissions under
chapter 47A only to the extent provided therein.36
Jurisdiction
The MCA establishes jurisdiction for military commissions somewhat more narrowly than that
asserted in President Bush’s M.O. The 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 or the law of war.37 A person
designated by the President as 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.”38 The MCA largely
validated the President’s jurisdictional scheme for military commissions.
32 Available at http://www.defenselink.mil/news/Apr2007/Reg_for_Trial_by_mcm.pdf.
33 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”).
34 10 U.S.C. § 948a (as added by the MCA).
35 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)).
36 10 U.S.C. § 948b(d)(2).
37 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”).
38 M.O. § 1(e) (finding such tribunals necessary to protect the United States and for effective conduct of military
operations).
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Personal Jurisdiction
The MCA authorizes military commissions to try any “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
(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.39
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 their detention is not expressly precluded.40
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 tribunals when other courts are
available.41 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
Quirin42 for unlawful belligerents, to the extent such persons enjoy constitutional protections,
would likely raise significant constitutional questions. To date, no resident aliens have been
charged for trial before a military commission under the MCA.
The MCA did not specifically identify who makes the determination that defendants meet the
definition of “unlawful enemy combatant.” The government sought to establish jurisdiction based
39 10 U.S.C. § 948a(1). Some judges in the U.S. District Court for the District of Columbia have adopted a more
restrictive definition to describe persons who are amenable to detention under the laws of war, termed “enemy
combatants” by the Bush Administration. See Mattan v. Obama, 618 F. Supp.2d 24 (D.D.C. 2009) (Government’s
detention authority covers individuals who are “part of” enemy forces, but does not extend to those who “supported”
such forces, although evidence of such support would be considered in determining whether a detainee should be
considered “part of” the forces); Hamlily v. Obama, 616 F.Supp.2d 63 (D.D.C. 2009) (neither AUMF nor the law of
war authorizes government’s detention of individual who substantially supports, but is not part of, targeted
organization, nor to those who have only directly supported hostilities); Gherebi v. Obama, 609 F. Supp.2d 43
(D.D.C.2009) (President has the authority to detain persons who were part of, or substantially supported, the Taliban or
al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms
‘substantially supported’ and ‘part of’ are interpreted to encompass only individuals who were members of the enemy
organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.”).
40 For analysis of the authority to detain U.S. citizens, see CRS Report RL31724, Detention of American Citizens as
Enemy Combatants, by Jennifer K. Elsea.
41 See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Duncan v. Kahanamoku, 327 U.S. 304 (1945).
42 317 U.S. 1 (1942).
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on the determinations of Combatant Status Review Tribunals (CSRTs), set up by the Pentagon to
determine the status of detainees using procedures similar to those the Army uses to determine
POW status during traditional wars.43 The CSRTs, however, are not empowered to determine
whether the enemy combatants are unlawful or lawful, which led two military commission judges
to hold that CSRT determinations are inadequate to form the basis for the jurisdiction of military
commissions.44 One of the judges determined that the military commission itself is not competent
to make the determination, while the other judge appears to have determined that the
government’s allegations did not set forth sufficient facts to conclude that the defendant, Salim
Hamdan, was an unlawful enemy combatant.45 The Court of Military Commission Review
(CMCR) reversed.46 While it agreed that the CSRT determinations are insufficient by themselves
to establish jurisdiction, it found the military judge erred in declaring that the status determination
had to be made by a competent tribunal other than the military commission itself.
In denying the government’s request to find that CSRT determinations are sufficient to establish
jurisdiction over the accused, the CMCR interpreted the MCA to require more than establishing
membership in Al Qaeda or the Taliban. The CMCR found:
no support for [the government’s] claim that Congress, through the M.C.A., created a
“comprehensive system” which sought to embrace and adopt all prior C.S.R.T.
determinations that resulted in “enemy combatant” status assignments, and summarily turn
those designations into findings that persons so labeled could also properly be considered
“unlawful enemy combatants.” Similarly, we find no support for [the government’s] position
regarding the parenthetical language contained in § 948a(1)(A)(i) of the M.C.A.—”including
a person who is part of the Taliban, al Qaeda, or associated forces.” We do not read this
language as declaring that a member of the Taliban, al Qaeda, or associated forces is per se
an “unlawful enemy combatant” for purposes of exercising criminal jurisdiction before a
military commission. We read the parenthetical comment as simply elaborating upon the
sentence immediately preceding it. That is, that a member of the Taliban, al Qaeda, or
associated forces who has engaged in hostilities or who has purposefully and materially
supported hostilities against the United States or its co-belligerents will also qualify as an
“unlawful enemy combatant” under the M.C.A. (emphasis added [by the court]).47
The CMCR further explained that executive branch memoranda defining “enemy combatant”
status were implemented solely for purposes of continued detention of personnel captured during
hostilities and applicability of the Geneva Conventions. By contrast:
Congress in the M.C.A. was carefully and deliberately defining status for the express
purpose of specifying the in personam criminal jurisdiction of military commission trials. In
43 See Department of Defense (DOD) Fact Sheet, “Combatant Status Review Tribunals,” available at
http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf. CSRT proceedings are modeled on the procedures
of Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees
(1997), which establishes administrative procedures to determine the status of detainees under the Geneva Conventions
and prescribes their treatment in accordance with international law. It does not include a category for “unlawful” or
“enemy” combatants, who would presumably be covered by the other categories.
44 See Josh White and Shailagh Murray, Guantanamo Ruling Renews The Debate Over Detainees, WASH. POST, June 6,
2007, at A3.
45 The orders are available on the DOD website at http://www.defenselink.mil/news/
courtofmilitarycommissionreview.html.
46 United States v. Khadr, CMCR 07-001 (September 24, 2007), available online at http://www.defenselink.mil/news/
Sep2007/KHADR%20Decision%20(24%20Sep%2007)(25%20pages).pdf.
47 Id. at 13.
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defining what was clearly intended to be limited jurisdiction, Congress also prescribed
serious criminal sanctions for those members of this select group who were ultimately
convicted by military commissions.48
Further, because detainees could not have known when their CSRT reviews were taking place that
the determination could subject them to the jurisdiction of a military commission, the CMCR
suggested that the use of CSRT determinations to establish jurisdiction would undermine
Congress’s intent that military commissions operate as “regularly constituted court[s], affording
all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’
for purposes of Common Article 3 of the Geneva Conventions.”49
As a consequence of the decision, the prosecution has had the burden of proving jurisdiction over
each person charged for trial by a military commission. The Manual for Military Commissions
was amended in May 2009 to reflect this practice.50
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....”51
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)), attempts (§ 950t), and
solicitation (§ 950u) to commit the defined acts are also punishable.
The MCA adopted the list of offenses DOD had authorized for trial by military commission under
the presidential order.52 That list was not meant to be exhaustive. Rather, it was intended as an
illustration of acts punishable under the law of war53 or triable by military commissions.54 The
regulations contained an express prohibition of trials for ex post facto crimes.55
48 Id.
49 Id. at 15 (citing 10 U.S.C. § 948b(f)).
50 Gates letter, supra footnote 29.
51 10 U.S.C. § 948d.
52 Military Commission Instruction (M.C.I.) No. 2, Crimes and Elements for Trials by Military Commission. 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”].
53 Crimes against the law of war listed in M.C.I. No. 2 were: 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.
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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,56 a court might conclude that
some of the listed crimes are new. For example, a plurality of the Supreme Court in Hamdan
agreed that conspiracy is not a war crime under the traditional law of war.57 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
(...continued)
54 Crimes “triable by military commissions” included 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.
55 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.”).
56 For example, 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.
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.
57 Hamdan v. Rumsfeld, 548 U.S. 557, 611 (2006).
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have implied that the killing of a combatant is not a war crime.58 While one military commission
judge found that Congress could reasonably conclude that “murder in violation of the law of war”
constitutes a common law violation of the law of war,59 another read the crime to consist of two
elements: “the [attempted] killings . . .were committed by an unlawful enemy combatant AND (2)
that the method, manner or circumstances used violated the law of war.”60
Similarly, defining as a war crime the “material support for terrorism”61 does not appear to be
supported by historical precedent. The military judge in the Hamdan military commission case
deferred to Congress’s determination in the MCA that “material support for terrorism” describes a
traditional offense against the law of war, citing Civil War precedents for trying crimes such as
cooperating with guerrillas or “guerrilla-marauders.”62 Yet the Supreme Court’s decision in Ex
parte Milligan63 may have limited the extent to which such crimes may be tried by military
commissions where martial law has not been established. Many persons were tried by military
commissions during the Philippine Insurrection for consorting with insurgents or other armed
outlaws, but only after the commanding general issued a proclamation to the public explaining its
obligation under the law of military occupation (a subset of the law of war analogous to martial
law) to refrain from such activity.64 In any event, the Obama Administration has expressed
misgivings as to whether the crime of “material support for terrorism” amounts to an ex post facto
law, and recommended the offense be eliminated from the MCA.65 All detainees against whom
charges have been filed so far have had at least one count of “material support for terrorism”
58 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.”).
59 United States v. Khadr, Ruling on Defense Motion to Dismiss Charge One for Failure to State an Offense and for
Lack of Subject Matter Jurisdiction (D-008) (April 21, 2008). Military Commission orders through June 1, 2009, are
available from the National Institute of Military Justice, 1 Military Commission Reporter, http://www.nimj.com/
documents/reporter_june 19_i.pdf.
60 United States v. Jawad, Ruling on Defense Motion to Dismiss – Lack of Subject Matter Jurisdiction (D-007)
(September 24, 2008).
61 10 U.S.C. § 950v(b)(25)(incorporating the definition found in 18 U.S.C. § 2339(A)).
62 United States v. Hamdan, Ruling on Motion to Dismiss (Ex Post Facto) D-012 (July 14, 2008), available at
http://howappealing.law.com/HamdanRulingMotionsToDismissExPostFacto.pdf
63 71 U.S. (4 Wall.) 2 (1866).
64 U.S. Congress, Senate Committee on the Philippines, Affairs in the Philippine Islands, 57th Cong., 1st sess., April 10,
1902, S.Hrg. 57-331 (Washington: GPO, 1902), pp. 1943-1946 (Statement explaining martial law and reprint of
proclamation by Gen. Arthur McArthur of Dec. 10, 1900). It appears that the terms “martial law” and the “law of
hostile [or belligerent] occupation” were used interchangeably.
65 U.S. Congress, Senate Committee on Armed Services, Military Commissions, 111th Cong., 1st sess., July 7, 2009
(Submitted statement of David Kris, Assistant Attorney General)(“[T]here are serious questions as to whether material
support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that
military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war
offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate
courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby
reversing hard-won convictions and leading to questions about the system’s legitimacy.”)
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among them,66 although in most cases the allegations underlying the charge appear under other
charges as well.
Part IV of the Manual for Military Commissions (M.M.C.) sets forth the elements of crimes
defined by the MCA. There are few substantive differences between the M.M.C. definitions and
those previously set forth DOD regulations for military commissions prior to the MCA. The
M.M.C. definition of “Aiding the Enemy” incorporates the element of wrongfulness added by 10
U.S.C. § 950v(26), necessitating a new finding that the accused owed some form of allegiance to
the United States at the time the conduct took place. Two crimes, “mutilation or maiming” and
“causing serious injury,”67 were altered to remove the element that required that the victim was in
the custody or control of the accused. The crime “murder by an unprivileged belligerent” was
broadened in the definition of “murder in violation of the law of war” to include not just killing,
but also deaths resulting from an act or omission of the accused, where the accused intended to
kill the victim or victims.
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.68 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 conflict related to the
September 11 attacks does not have clear boundaries in time or space,69 nor is it entirely clear
who the belligerents are.
The broad reach of President Bush’s 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, although DOD regulation purported
to restate customary law.70 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.”71 The elements of crimes set forth in the Manual for Military Commissions include a
66 Charge sheets are available at http://www.defenselink.mil/news/commissions.html.
67 10 U.S.C. § 950v(b)(13-14). For “serious bodily injury,” the MCA specifically includes “lawful combatants” as
possible victims.
68 See WINTHROP, supra footnote 8, 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).
69 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).
70 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; 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).
71 10 U.S.C. § 948d.
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nexus to an armed conflict, but neither the manual nor the MCA contains a definition. The
Supreme Court has not clarified the scope of the conflict authorized by Congress in 2001, but it
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. In 2008, the military
judge in the Hamdan case concluded as much, holding that a charge of “[m]embership in a
conspiracy that planned and carried out the attacks of September 11th, 2001 will be deemed to be
in violation of the law of war; membership in a conspiracy that planned or carried out other
attacks long before that date and unrelated to hostilities will not.”72
Composition and Powers
The DOD regulations for military commissions prior to the MCA 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 Defense or his designee,73 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.74 The presiding officer was
required to be a judge advocate in any of the U.S. armed forces, but not necessarily a military
judge.75
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.76 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, the MCA empowers military commissions to maintain decorum
during proceedings. Previously, the presiding officer was authorized “to act upon any contempt or
breach of Commission rules and procedures,” including disciplining any individual who violates
72 United States v. Hamdan, Ruling on Motion to Dismiss (Res Judicata) (April 2, 2008).
73 M.C.O. No. 1 § 4(A)(3).
74 See 10 U.S.C. § 603, listed as reference (e) of M.C.O. No. 1.
75 M.C.O. No. 1 § 4(A)(4). See NIMJ, supra footnote 37, 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 relevant service’s JAG Corps to serve in a role similar to civilian judges.
76 10 U.S.C. §§ 948m and 949m.
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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.77 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, but the
M.M.C. expressly provides for jurisdiction over all persons, including civilians, and permits
military judges to sentence those convicted with both fines and terms of confinement.78 In the
case of military commissions established under the UCMJ, there is statutory authority for military
commissions to punish contempt with a fine of $100, confinement for up to 30 days, or both.79
Neither the MCA nor the M.M.C. sets any limit on punishment for contempt.
The MCA provides that military commissions have 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.”80 However, rather than providing that the trial counsel
and the defense are to have equal opportunity to obtain witnesses and evidence, as is the case in
general courts-martial, the MCA provides the defense a “reasonable opportunity” to obtain
witnesses and evidence. The M.M.C. provides the trial counsel with responsibility for producing
witnesses requested by the defense, unless trial counsel determines the witness’s testimony is not
required, but the defense counsel may appeal the determination to the convening authority or,
after referral, the military judge.81
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.82
Presumably, this article could be used to prosecute civilians residing in U.S. territory who refuse
to comply with a subpoena issued under the MCA. The M.M.C. provides the military judge or
any person designated to take evidence authority to issue a subpoena to compel the presence of a
witness or the production of documents. As is the case with general courts-martial, the military
judge may issue a warrant of attachment to compel the presence of a witness who refuses to
comply with a subpoena.83 Subpoena authority under the UCMJ may not be used to compel a
civilian witness to travel abroad in order to provide testimony,84 so the corresponding authority
under the MCA be insufficient to compel civilian witnesses to travel to Cuba. Testimony by video
transmission may be permitted in such cases.85
77 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”).
78 Rule for Military Commissions (R.M.C.) 809.
79 See 10 U.S.C. § 848. This section is made inapplicable to military commissions in chapter 47a by MCA § 4.
80 10 U.S.C. § 949j.
81 R.M.C. 703.
82 See 10 U.S.C. § 847. It is unclear how witnesses are “duly subpoenaed” for military commissions established under
the UCMJ. 10 U.S.C. § 846 empowers the president of a 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.”
83 R.M.C. 703; R.C.M. 703.
84 DAVID SCHLEUTER, MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE § 11-2(D)(2) (5th ed. 1999); United
States v. Bennett, 12 M.J. 463 (C.M.A. 1982).
85 R.M.C. 611(d).
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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 in
Hamdan v. Rumsfed 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.86
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. Rule 104 of the Rules for Military Commissions (R.M.C.)
prohibits command influence in terms similar to those in the Manual for Courts-Martial, except
that they apply more broadly to “all persons” rather than only to “all persons subject to the
[UCMJ].”
On the other hand, it has been argued that the multiple roles assigned to the convening authority,
the DOD official who decides which charges to bring, allocates resources among the parties, and
then approves or disapproves the findings of the military commission, create an inherent risk of
unfairness (or the perception of unfairness).87 While the convening authority for courts-martial
also plays multiple roles, these functions serve as commanders’ tools for enforcing discipline
among subordinates, a context that arguably differs in important ways from bringing criminal
cases against alleged enemies. 88 Improper influence by the legal advisor to the convening
authority has been alleged at a few military commission proceedings, prompting military judges
to issue orders in some cases granting relief.89 Executive branch control over who serves as
military judges has also led to charges of unfairness.90
86 Hamdan, 647-51 (Kennedy, J. concurring).
87 Gregory S. McNeal, Beyond Guantánamo, Obstacles and Options, 103 NW. U. L. REV. COLLOQUY 29, 32 (2008)
(blaming “conflicting statutory provisions” for perceived undue influence at military commissions under the MCA).
88 See id. at 34; U.S. Congress, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties, Proposals for Reform of the Military Commissions System, 111th Cong., 1st sess., July 30, 2009
(statement of Peter R. Masciola, USAFG, Chief Defense Counsel Office of Military Commissions-Defense
Washington, DC), available at http://judiciary.house.gov/hearings/pdf/Masciola090730.pdf.
89 United States v. Hamdan, RULING ON MOTION TO DISMISS
(UNLAWFUL INFLUENCE)
(D-026) (May 9, 2008) (Ordering substitute legal advisor be appointed for reviewing the case); United States v. Jawad,
Ruling on Motion to Dismiss – Unlawful Influence (D-004) (Aug. 14, 2008) (finding the Legal Advisor’s public
expression of support for the military commission process and alignment with the prosecution to have “compromised
the objectivity necessary to dispassionately and fairly evaluate the evidence and prepare the post-trial
recommendation,” consequently disqualifying the legal advisor from carrying out post-trial responsibilities in the case);
United States v. al Darbi, Ruling on Defense Motion to Dismiss (D-011) (October 2, 2008) (denying as moot request
for relief, while noting activities of previous Legal Advisor may have compromised objectivity in necessary to fairly
evaluate evidence and prepare post-trial recommendation).
90 United States v. Khadr, Ruling on Defense Motion to Dismiss (D-076) (Aug. 15, 2008) (denying relief where
military judge was replaced after expiration of recall to active duty);
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Procedures Accorded the Accused
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 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.91 The accused is to be presumed innocent until determined to
be guilty. 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.92 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.93
Open Hearing
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.94 The First Amendment right of public access
extends to trials by court-martial,95 but is not absolute. 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.”96 The reporters’ right to gather information does not include an absolute right to gain
access to areas not open to the public.97 In general, 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.98
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.99 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
91 10 U.S.C. § 948q.
92 M.C.O. No. 1 §§ 5(B) and 6(B); 10 U.S.C. § 949i.
93 10 U.S.C. § 949a(b).
94 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).
95 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).
96 Pell v. Procunier, 417 U.S. 817, 822-24 (1974).
97 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 held at the Guantánamo Bay Naval Station may
be de facto closed due to the physical isolation of the facility).
98 See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984).
99 10 U.S.C. § 949d(d).
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trial, the procedures may implicate the First Amendment rights of the press and public. The
M.M.C. provides, in Rule 806, that the military judge may close proceedings only to protect
information designated for such protection by a government agency or to secure the physical
safety of individuals. However, the rule also provides that “in order to maintain the dignity and
decorum of the proceedings or for other good cause, the military judge may reasonably limit the
number of spectators in, and the means of access to, the courtroom, and exclude specific persons
from the courtroom.” Such limitations must be supported by written findings.
Another method military judges have adopted to protect classified information is to employ a
time-delay on the audio feed of the proceedings to the public in the gallery in order to permit the
judge or other authorized person to turn off the audio in the event classified information has been
or is about to be disclosed.100 The measure was said to be necessary because the statements of the
accused are presumptively classified. If the switch is activated, the judge was to order a halt to the
proceedings to evaluate the nature of the information or to permit the prosecution to assert a
national security privilege.
Right to be Present
Under UCMJ art. 39,101 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 prior to the MCA, the accused or the accused’s civilian attorney could be precluded
from attending portions of the trial for reasons involving national security, but a detailed defense
counsel was to be present for all hearings.102 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.103 However, the accused may be excluded
from in camera considerations regarding classified information.104 The accused may not waive
the right to be present at his trial, but may forfeit it through disruptive behavior or refusal to
attend proceedings.105
Right to Counsel
As is the case in military courts-martial, an accused before a military commission under the MCA
has the right to have military counsel assigned free of charge. The right to counsel attaches much
earlier in the regular 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
100 E.g., United States v. Hamdan, Protective Order #3 (June 4, 2008).
101 10 U.S.C. § 839.
102 That the accused could be excluded from portions of own trial and prevented from learning what evidence was
introduced was among the factors that the Hamdan Court found most troubling about the military commissions
established pursuant to President Bush’s M.O. 548 U.S. at 614.
103 10 U.S.C. § 949d(e).
104 United States v. Khadr, Ruling on Defense Motion for Appropriate Relief (D-015) (Feb. 21, 2008).
105 R.M.C. 804 (discussion).
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swearing of charges….”106 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.107
Unlike the DOD rules, the MCA provides that the accused has the right to self-representation.108
Previous 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.109 The MCA does not expressly provide the accused an
opportunity to request a specific JAG officer to act as counsel. However, under the DOD
regulations, the accused may request a specific military attorney from the defense team at the
beginning of the proceedings, and may request a replacement counsel from the Chief Defense
Counsel if he believes his detailed counsel has been ineffective or if he is otherwise materially
dissatisfied with his assigned counsel.110 If the accused retains the services of a civilian attorney,
the MCA provides that military defense counsel is to act as associate counsel.111 The M.M.C.
provides that, in the event the accused elects to represent himself, the detailed counsel shall serve
as “standby counsel,”112 and the military judge may require that such defense counsel remain
present during proceedings.113
The MCA requires civilian attorneys defending an accused before military commission to meet
the same strict qualifications that applied under DOD rules.114 A civilian attorney must be a U.S.
citizen with at least a SECRET clearance with membership in any state or territorial bar and no
disciplinary record.115 The MCA does not set forth in any detail what rules might be established to
govern the conduct of civilian counsel. Under the present regulation, the Chief Defense Counsel
has the responsibility of determining the eligibility of civilian defense counsel, and may
reconsider the determination based on subsequently discovered information indicating material
nondisclosure or misrepresentation in the application, or material violation of obligations of the
civilian defense counsel, or other good cause.”116 Alternatively, the Chief Defense Counsel may
refer the matter to either the convening authority or the DOD Deputy General Counsel (Personnel
106 10 U.S.C. § 948k.
107 10 U.S.C. § 949c(b); R.M.C. 804.
10810 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).
109 M.C.O. No. 1 § 4(C). M.C.I. No. 4 § 3(D) listed criteria for the “availability” of selected detailed counsel.
110 Regulation for Trial by Military Commissions, Para. 9-2. The accused may request a specific JAG officer from the
cadre of officers assigned to the Defense Counsel’s Office, but does not have a right to choose. The Rules for Military
Commissions, Rule 506 was amended to provide the accused an opportunity to choose military defense counsel from
among military counsel assigned to the Office of Military Commissions as defense counsel. Gates letter, supra footnote
29.
111 10 U.S.C. § 949c(b)(5).
112 R.M.C. 501.
113 R.M.C. 506(c).
114 10 U.S.C. § 949c(b).
115 10 U.S.C. §949c, R.M.C. 502(d)(3).
116 Regulation for Trial by Military Commissions, Para. 9-5(c).
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and Health Policy), who may revoke or suspend the qualification of any member of the civilian
defense counsel pool.
The MCA does not address the monitoring of communications between the accused and his
attorney, and does not provide for an attorney-client privilege. Rule 502 of the Military
Commission Rules of Evidence (Mil. Comm. R. Evid.) provides for substantially the same
lawyer-client privilege that applies in courts-martial.117 With respect to the monitoring of
attorney-client communications, the previous 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.118 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 pending crime that could lead to “death, substantial
bodily harm, or a significant impairment of national security.”119 The required agreement under
the present regulations imposes a similar duty to inform, but does not mention monitoring of
communications.120
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.”121 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.”122 In courts-martial, the Military Rules of Evidence (Mil. R.
Evid.)123 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].”124
117 Mil. R. Evid. 502.
118 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.
119 M.C.I. No. 5, Annex B § II(J).
120 Regulation for Trial by Military Commissions, Figure 9.2. Affidavit and Agreement by Civilian Defense Counsel,
II(J).
121 U.S. CONST. Amdt. VI applies in courts-martial. E.g. United States v. Scheffer, 523 U.S. 303 (1998).
122 Maryland v. Craig, 497 U.S. 836, 845 (1990).
123 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, (April 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.).
124 Mil. R. Evid. 402.
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Relevant evidence is excluded if its probative value is outweighed by other factors.125 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,126 with some allowance for protecting non-relevant classified
information.127
Supporters of the use of military commissions to try suspected terrorists have viewed the
possibility of employing evidentiary standards that vary from those used in federal courts or in
military courts-martial as a significant advantage over those courts. The Supreme Court seemed
to indicate that the previous 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
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.”128
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.”129 It is not clear what
evidence might be excluded from this requirement as irrelevant to the issues of guilt, innocence,
or appropriate punishment. A possible 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.130 It does not guarantee the
defense equal opportunity with the prosecution to obtain such evidence, as is the case at general
courts-martial.131 Unlike the previous DOD rules in 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.132 However, as noted above, the accused is entitled to examine and respond to evidence
relevant to establishing culpability. The MCA provides that the accused is entitled to exculpatory
125 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”).
126 See R.C.M. 701(a)(6).
127 Mil. R. Evid. 505 provides procedures similar to the Classified Information Protection Act (CIPA) that applies in
civilian court.
128 Hamdan v. Rumsfeld, 548 U.S. 557, 635 (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”).
129 10 U.S.C. § 949a.
130 10 U.S.C. § 949j.
131 10 U.S.C. § 846.
132 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)).
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information known to the prosecution, with procedures permitting some variance for security
concerns.
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.133 However, where M.C.O. No. 1 permitted the withholding of
any “Protected Information,”134 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. The military judge may authorize the government to delete specified portions of
evidence to be made available to the accused, or may allow an unclassified summary or statement
setting forth the facts the evidence would tend to prove, to the extent practicable in accordance
with the rules used at general courts-martial.135 The MCA does not provide defense counsel with
access to the classified information that serves as the basis for substitute or redacted proffers.
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-martial136), 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. If the military judge finds that evidence is classified, he or
she must authorize the trial counsel to protect the sources and methods by which such evidence
was acquired.137 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.138
R.M.C. 701(e) provides that trial counsel must provide exculpatory evidence that he would be
required to produce in general courts-martial, subject to exceptions where the government asserts
a national security privilege. In such a case, the military judge may issue a protective order, but
the defense is entitled to an adequate substitute for the information.139 Such a substitute may
involve, to the extent practicable, the deletion of specified items of classified information from
133 10 U.S.C. § 949j.
134 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”).
135 10 U.S.C. § 949d(f)(2)(A).
136 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 is not defined, but it appears to be
encompassed under “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. The M.M.C. defines
“exculpatory evidence” in those same terms. R.M.C. 701(e).
137 R.M.C. 701(f)(3).
138 10 U.S.C. § 949j.
139 R.M.C. 701(f)(5). Protective orders are covered under Mil. Comm. R. Evid. 505, and include orders that limit the
scope of direct examination and cross examination of witnesses.
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documents made available to the defense; the substitution of a portion or summary of the
information for such classified documents; or the substitution of a statement admitting relevant
facts that the classified information would tend to prove.140
In the event the military judge determines that the government’s proposed substitute would be
inadequate or impracticable for use in lieu of evidence that the government seeks to introduce at
trial, evidence that is exculpatory, or evidence that is necessary to enable the defense to prepare
for trial, and the government objects to methods the judge deems appropriate, the judge is
required to “issue any order that the interests of justice require.”141 Such an order must give the
government an opportunity to comply to avoid a sanction, and may include striking or precluding
all or part of a witness’s testimony, declaring a mistrial, ruling against the government on any
issue as to which the evidence is probative and material to the defense, or dismiss charges, or at
least those charges or specifications to which the evidence relates, with or without prejudice.142
Admissibility of Evidence
Evidence is admissible at military commissions under the MCA if it is deemed to have “probative
value to a reasonable person.”143 The Secretary of Defense is permitted to provide by regulation
that the military judge is to exclude evidence if its probative value is substantially 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,”144 and has done so.145
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
140 R.M.C. 701(f)(2).
141 Mil. Comm. R. Evid. 505(e)(4).
142 Id. The corresponding rule for courts-martial, Mil. R. Evid. 505, provides that the military judge, upon finding that
the lack of production of information would materially prejudice a substantial right of the accused, must “dismiss the
charges or specifications or both to which the classified information relates.”
143 M.C.O. No. 1 § 6(D)(1). At courts-martial, evidence is admitted if it is “relevant,” meaning “tending to make the
existence of any fact that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Mil. R. Evid. 401. At military commissions, evidence meets the standard of “probative
to a reasonable person” if “a reasonable person would regard the evidence as making the existence of any fact that is of
consequence to a determination of the commission action more probable or less probable than it would be without the
evidence.” Mil. Comm. R. Evid. 403.
144 10 U.S.C. § 949a(b)(2)(F).
145 Mil. Comm. R. Evid. 403.
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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.”
Accordingly, Mil. Comm. R. Evid. 304 provides that an accused’s statements that were elicited by
torture may not be admitted against him if he makes a timely motion to suppress or an objection
to the evidence. Initially, statements introduced by any party that were allegedly produced by
lesser forms of coercion, where the degree of coercion is disputed, could only be introduced after
the military judge made the appropriate findings according to the above formula. With changes to
the regulations made in May, 2009, however, the military judge will be required to preclude any
evidence elicited through cruel, inhuman or degrading treatment, without regard to when the
statement was made.146 The defense is required to make any objections to the proposed use of any
statements by the accused prior to entering a plea, if the trial counsel has disclosed the intent to
use the statement, otherwise the objection will be deemed to have been waived.147 The military
judge may require the defense to establish the grounds for excluding the statement. However, the
government has the burden of establishing the admissibility of the evidence. If the statement is
ruled admissible, the defense is permitted to present evidence with respect to the voluntariness of
the statement, and the military judge must instruct the members to consider that factor in
according weight to the evidence. Testimony given by the accused for the purpose of denying
having made a statement or for disputing the admissibility of a statement is not to be used against
him for any purpose other than in prosecution for perjury or false statements.148
Mil. Comm. R. Evid. 304 is modeled on Mil. R. Evid. 304, which prescribes rules for courts-
martial to provide for the admission into evidence of confessions and admissions (self-
incriminating statements not amounting to an admission of guilt). Under court-martial rules, such
a statement and any evidence derived as a result of such a statement are admissible only if the
statement was made voluntarily. Involuntary statements are those elicited through coercion or
other means in violation of constitutional due process. To be used as evidence of guilt against the
accused at court martial, a confession or admission must be corroborated by independent
evidence. There is no requirement for corroboration of such statements at military commissions;
however, the military judge may take the existence of corroborating evidence into consideration
in determining the probative value and reliability of the statement.
In one case before a military commission, the military judge ordered a detainee’s statements to
Afghan officials at the time of his capture suppressed on the basis of death threats against the
detainee as well as his family.149 Such treatment is regarded as torture under the Military
Commission Rules of Evidence.150 Further, the military judge ruled that statements subsequently
made by the accused to U.S. interrogators likewise were required to be suppressed because they
were taken under circumstances that did not sufficiently dissipate the coercive effect of the earlier
146 Gates letter, supra footnote 29.
147 Mil. Com. R. Evid. 304(d).
148 Mil. Com. R. Evid. 304(f).
149 United States v. Jawad, ruling on Defense Motion to Suppress Out-of-Court Statements of the Accused to Afghan
Authorities (D-022) (October 28, 2008).
150 Mil. R. Evid. 304.
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threats.151 The government sought to appeal the latter ruling, but has since dropped the charges
against the detainee after he prevailed in his habeas petition.152
Hearsay
Hearsay evidence is an out-of-court statement, whether oral, written, or conveyed through non-
verbal conduct, introduced into evidence to prove the truth of the matter asserted. 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-Martial153 only if the proponent of the
evidence notifies the adverse party sufficiently in advance of trial 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).”154 Originally, the evidence was
to be inadmissible only if the party opposing its admission “clearly demonstrates that the
evidence is unreliable or lacking in probative value.”155 The May, 2009 changes to the regulations
reverse the burden of demonstrating reliability to the proponent of the evidence.156
The rule regarding hearsay is provided in Mil. Comm. R. Evid. 801 to 807. In contrast to the
relatively restrictive rule applied in courts-martial, where hearsay is not admissible except as
permitted by a lengthy set of exceptions,157 the military commission rules provide that hearsay is
admissible on the same basis as any other form of evidence except as provided by these rules or
an act of Congress. The rules do not set forth any prohibitions with respect to hearsay evidence.
Mil. Comm. R. Evid. 803 provides that hearsay may be admitted if it would be admissible at
courts-martial. Alternatively, hearsay is admissible if the party proffering it notifies the adverse
party thirty days in advance of trial or hearing of its intent to offer such evidence and provides
any materials in its possession regarding the time, place, and conditions under which the
statement was procured. Absent such notice, the military judge is responsible for determining
whether the opposing party has been provided a “fair opportunity under the totality of the
circumstances.”158 Hearsay evidence is admissible only if the proponent demonstrates by a
preponderance of the evidence that such hearsay is reliable under the totality of the
circumstances.159
151 United States v. Jawad, ruling on Defense Motion to Suppress Out-of-Court Statements of the Accused Made While
in U.S. Custody (D-021) (November 19, 2008).
152 “Military officially drops charges against Mohammed Jawad,” McClatchy , July 31, 2009, online edition.
153 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.
154 10 U.S.C. § 949a(b)(3)).
155 10 U.S.C. § 949a(2)(E) (rules that may be prescribed by the Secretary of Defense).
156 Gates letter, supra footnote 29.
157 Mil. R. Evid. 803 (exceptions for which the availability of the declarant is immaterial); Mil. R. Evid. 804
(exceptions applicable when declarant is unavailable); Mil. R. Evid. 807 (residual exception, which permits all other
hearsay not covered by express exceptions when there are “equivalent circumstantial guarantees of trustworthiness”
and the military judge determines the statement relates to a material fact, is more probative to that fact than other
reasonably obtainable evidence, and that its introduction into evidence “serves the general purposes of the rules and the
interest of justice”).
158Mil. Comm. R. Evid. 803(b)(2).
159 Mil. Comm. R. Evid. 803(c) (as modified).
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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.160 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 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.161
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.162 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.”163
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.164 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,”165 it may be admissible and survive challenge.
160 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)).”
161 10 U.S.C. § 949d(f)(3).
162 Id.
163 Id.
164 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).
165 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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Classified evidence is privileged under Mil. Comm. R. Evid. 505. Commentary to the rule notes
that, because the defense has had no opportunity to evaluate the evidence to formulate any
objections, “the military judge’s consideration must encompass a broad range of potential
objections.”166 During the examination of witnesses at trial, the trial counsel may make an
objection to any question or motion that might lead to the disclosure of classified information.
The military judge is required to take appropriate action, such as reviewing the matter in camera
or granting a delay to allow the trial counsel to confer with the relevant agency officer to
determine whether the privilege should be asserted. The judge may order that only parts of
documents or other materials be entered into evidence, or permit proof of the contents of such
materials without requiring introduction into evidence of the original or a duplicate.167 In the
event the defense reasonably expects to disclose classified information at trial, defense counsel
must notify the trial counsel and the judge, and is precluded from disclosing information known
or believed to be classified until the government has had a reasonable opportunity to move for an
in camera determination as to protective measures.168 Mil. Comm. R. Evid. 505 is modeled after
the corresponding rule that applies in general courts-martial,169 which in turn are modeled after
the procedures that apply in federal criminal court, the Classified Information Procedures Act.170
Sentencing
The MCA provides that military commissions may adjudge “any punishment not forbidden by [it
or the UCMJ], including the penalty of death….”171 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.”172 A vote of two-thirds of the members
present 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 sentence. The death penalty must be expressly
authorized for the offense,173 and the charges referred to the commission must have expressly
sought the penalty of death.174 The death sentence may not be executed until the commission
proceedings have been finally adjudged lawful and all appeals are exhausted,175 and after the
166 M.M.C. at III-26.
167 Mil. Comm. R. Evid. 505(f). Similar procedures are permitted courts-martial. Mil. R. Evid. 505(j).
168 Mil. Comm. R. Evid. 505(g). This rule is virtually identical to Mil. R. Evid. 505(h).
169 Mil. R. Evid. 505.
170 P.L. 96-456, Oct. 15, 1980, codified at 18 U.S.C. App.
171 10 U.S.C. § 948d.
172 10 U.S.C. § 949s.
173 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.
174 10 U.S.C. § 949m.
175 An accused sentenced to death may neither waive his right to appeal nor withdraw an appeal. 10 U.S.C. § 950c.
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The Military Commissions Act of 2006: Background and Proposed Amendments
President approves the sentence.176 The President is permitted to “commute, remit, or suspend [a
death] sentence, or any part thereof, as he sees fit.”177 For sentences other than death, the
Secretary of the Defense or the convening authority are permitted to adjust the sentence
downward.178
Chapter X of the Rules for Military Commissions covers sentencing. “Aggravating factors” that
may be presented by the trial counsel include evidence that “any offense of which the accused has
been convicted comprises a violation of the law of war.”179 Unlike the rules for courts-martial,
there is no express opportunity for the trial counsel to present evidence regarding rehabilitative
potential of the accused. However, the rules provide that the accused may make a sworn or
unsworn statement to present mitigating or extenuating circumstances or to rebut evidence of
aggravation submitted by the trial counsel. In the case of an unsworn statement, which may be
written or oral, the accused is not subject to cross-examination by the trial counsel.180
The death penalty may only be adjudged if expressly authorized for the offense listed or if it is
authorized under the law of war; and all twelve members of the commission voted to convict the
accused; and found that at least one of the listed aggravating factors exists, agreed that such
factors outweigh any extenuating or mitigating circumstances, and voted to impose the death
penalty. Aggravating factors include that “the accused was convicted of an offense, referred as
capital, that is a violation of the law of war,” that the offense resulted in the death of or
substantially endangered the life of one or more other persons, the offense was committed for the
purpose of receiving money or a thing of value, the offense involved torture or certain other
mistreatment, the accused was also found guilty of another capital crime, the victim was below
the age of fifteen, or that the victim was a protected person.181 Other aggravating circumstances
include specific law-of-war violations, which, except for spying, are not to be applied to offenses
of which they are already an element.
Post-Trial Procedure
Subchapter VI of the MCA prescribes post-trial procedure and appeals, similar to procedures
DOD had implemented. It provides for an administrative review of the trial record by the
convening authority followed by a review panel.
Review and Appeal
The MCA codified the establishment of the review body set up under the previous DOD rules for
military commissions.182 The Court of Military Commission Review (CMCR) is comprised of
appellate military judges who meet the same qualifications as military judges or comparable
176 10 U.S.C. § 950i(b)-(c).
177 10 U.S.C. § 950i(b).
178 10 U.S.C. § 950i(d).
179 R.M.C. 1001(b)(2). Otherwise, aggravating factors are similar to those listed in R.C.M. 1001(b)(5)(D) for courts-
martial.
180 R.M.C. 1001(c)(2)(D). The trial counsel may rebut the statement. This procedure does not appear to differ
substantially from that used in courts-martial.
181 R.M.C. 1004(c).
182 M.C.I. No. 9 § 4(C).
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qualifications for civilian judges.183 The accused may appeal a final decision of the military
commission with respect to issues of law to the CMCR. 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 accused.184 If the CMCR approves the verdict, the accused may
appeal the final decision to the United States Court of Appeals for the District of Columbia
Circuit.185 Appellate court decisions may be reviewed by the Supreme Court under writ of
certiorari.186
Post-trial procedures for military commissions are set forth in Chapter XI of the Rules for
Military Commissions. Post-trial proceedings may be conducted to correct errors, omissions, or
inconsistencies, where the revision can be accomplished without material prejudice to the
accused.187 Sessions without members may be ordered to reconsider any trial ruling that
substantially affects the legal sufficiency of any findings of guilt or the sentence.
Once the record is authenticated and forwarded to the convening authority, the accused is
permitted, within 20 days unless additional time is approved, to submit matters relevant to
whether to approve the sentence or disapprove findings of guilt.188 The convening authority is
required to consider written submissions. If the military commission has made a finding of guilty,
the legal advisor also reviews the record and provides recommendations to the convening
authority.189 The convening authority may not take an action disapproving a finding of not guilty
or a ruling that amounts to a finding of not guilty.190 However, in the case of a finding of not
guilty by reason of lack of mental responsibility, the convening authority may commit the
accused to a suitable facility for treatment pending a hearing to determine whether the accused
may be released or detained under less than the most stringent circumstances without posing a
danger to others.191
Rehearings of guilty findings may be ordered at the discretion of the convening authority, except
where there is a lack of sufficient evidence to support the charge or lesser included offense.
Rehearings are permitted if evidence that should not have been admitted can be replaced by an
admissible substitute.192 Any part of a sentence served pursuant to the military commission’s
original holding counts toward any sentence that results from a hearing for resentencing.193
183 10 U.S.C. § 950f.
184 10 U.S.C. § 859; 10 U.S.C. § 950a(a).
185 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.
186 10 U.S.C. § 950g.
187 R.M.C. 1102(b).
188 R.M.C. 1105.
189 R.M.C. 1106.
190 R.M.C. 1107.
191 R.M.C. 1102A.
192 R.M.C. 1107(e).
193 R.M.C. 1107(f)(5).
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In all cases in which the convening authority approves a finding of guilty, the record is forwarded
to the CMCR, unless the accused (where the sentence does not include death) waives review.194
No relief may be granted by the CMCR unless an error of law prejudiced a substantial trial right
of the accused.195 The accused has 20 days after receiving notification of the CMCR decision to
submit a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit.
Within two years after a military commission conviction becomes final, an accused may petition
the convening authority for a new trial on the ground of newly discovered evidence or fraud on
the military commission.196
Protection against Double Jeopardy
Prior to the MCA, DOD regulations for military commissions 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).197
However, the regulations appeared to permit revisions of a verdict prior to its becoming final in
ways that might have resulted in double jeopardy.198
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 same offense.”199 Jeopardy attaches when a guilty finding
becomes final after review of the case has been fully completed. 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.200 These protections are
covered in Chapter XI of the Rules for Military Commission. Proceedings are not authorized to
reconsider any ruling that amounts to a finding of not guilty as to any charge or specification,
except with respect to a charge where the record indicates guilt as to a specification that may be
charged as a separate offense under the MCA.201 Proceedings for increasing the severity of a
sentence are not permitted unless the commission failed to adjudge a proper sentence under the
MCA or the sentence was less than that agreed to in a plea agreement.202
The inadequacy of an indictment in specifying charges could raise double jeopardy concerns. 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
194 R.M.C. 1111. Courts-martial findings are first forwarded to the Judge Advocate General of the particular service for
legal review, R.C.M. 1112.
195 R.M.C. 1201.
196 R.M.C. 1210.
197 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).
198 See CRS Report RL33688, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison
with Previous DOD Rules and the Uniform Code of Military Justice.
199 10 U.S.C. § 949h.
200 10 U.S.C. § 950b(d)(2)(B).
201 R.M.C. 1102(c).
202 Id. At courts-martial, sessions to increase the severity of a sentence are permitted only if the sentence is mandatory.
R.C.M. 1102(c).
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signed under oath by a person with personal knowledge or reason to believe that matters set forth
therein are true,203 and requires that they be served on the accused written in a language he
understands.204 There is no express requirement regarding the specificity of the charges in the
MCA, but the Rules for Military Commission provide that the charge must state the punitive
article of the act, law of war, or offense as defined in the Manual for Military Commissions that
the accused is alleged to have violated.205 A specification must allege every element of the
charged offense expressly or by necessary implication.206 The Rules for Military Commissions
make the trial counsel responsible for causing the accused to be served a copy of the charges in
English and another language that the accused understands, where appropriate.207 After the
accused is arraigned, the military judge may permit minor changes in the charges and
specifications before findings are announced if no substantial right of the accused is prejudiced,
but no major changes may be made over the objection of the accused without a new referral.208
President Bush’s 2001 Military Order 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, or that a
person already charged for crimes in federal courts could be made subject to the Order and
transferred for trial by military commission.209 Double jeopardy might have arisen in either event,
depending on whether jeopardy had attached prior to transfer, even if the trial did not result in a
final verdict. The MCA does not expressly address such transfers or prohibit trial in another
forum. The Rules for Military Commissions, however, provide the accused a waivable right to
move to dismiss charges on the basis that he has previously been tried by a federal civilian court
for the same offense.210
Proposed Legislation
One bill has been introduced in the 111th Congress to amend the MCA. For additional legislation
pertaining to detainees and habeas corpus, see CRS Report R40419, Analysis of Selected
Legislative Proposals Addressing Guantanamo Detainees, by Anna C. Henning.
Sec. 1031 of the National Defense Authorization Act for FY2010 (“NDAA FY2010”), S. 1390,
111th Cong, 1st Sess. (2009), (as passed by the Senate), would replace chapter 47a of title 10,
U.S. Code, as enacted by the MCA 2006. Some key differences between § 1031 of S. 1390 and
the MCA 2006 include:
• Military commissions would have jurisdiction over “alien unprivileged enemy
belligerents,” defined somewhat differently from “alien unlawful enemy
combatants” in the current law. The definition eliminates references to Al Qaeda
203 10 U.S.C. § 948q.
204 10 U.S.C. § 948s.
205 R.M.C. 307.
206 Id.
207 RM.C. 602.
208 Id.
209 M.O. § 7(e).
210 R.M.C. 907.
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The Military Commissions Act of 2006: Background and Proposed Amendments
and the Taliban. Military commissions would have express authority to determine
their own jurisdiction.
• While MCA offenses remain substantially unchanged, the amendment requires
that offenses occurred “in the context of and associated with armed conflict.”
Crimes that occurred prior to enactment of the bill would be prosecutable only to
the extent that they are codifications of crimes traditionally triable by military
commissions. (The MCA currently declares all covered offenses to be
codifications of existing crimes).
• Confessions allegedly elicited through cruel, inhuman, or degrading treatment
prohibited by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C.
§ 2000dd) would be inadmissible, regardless of when the statement was made.
The MCA bars the use of such confessions only if they were made after the
enactment of section 1003. (This change codifies an amendment to the Manual
for Military Commission already made under the Obama Administration).
• In the case of hearsay evidence, the party offering the evidence would have the
burden of demonstrating that it is reliable, whereas under current law, the
opponent has the burden of proving that it is unreliable. (This change also
codifies an amendment to regulations already made under the Obama
Administration).
• The Court of Appeals of the Armed Services (CAAF) rather than the Court of
Military Commission Review would serve as the exclusive appellate court. All
trials that produce a guilty verdict would be referred automatically for review by
the CAAF, unless waived where permitted.211 The CAAF’s scope of review
would include questions of fact as well as law, and the CAAF would have the
authority to order charges dismissed. The Court of Appeals for the D.C. Circuit
would have no appellate role. The Supreme Court would retain discretionary
jurisdiction through writ of certiorari.
• The obligation to disclose exculpatory information would include mitigating
evidence, and the obligation would extend to all information that is known or
reasonably should be known to any government officials who participated in the
investigation and prosecution of the case. This amendment essentially codifies
the rules in the Manual for Military Commissions applicable to discovery, which
defines “exculpatory information” to include evidence that tends to reduce the
degree of guilt of the accused of an offense charged or reduce the punishment.
Further, “evidence known to trial counsel,” includes evidence that the
prosecution would be required to disclose in a trial by general court-martial,
which covers information under the control of the government.212
The Obama Administration has proposed some amendments to section 1031 of S. 1390.
211 The Court of Appeals for the Armed Forces is established by title 10, U.S. Code to hear appeals of certain court-
martial cases from the military services Courts of Criminal Appeals. Review by the CAAF is discretionary in most
cases, and a denial of review by the CAAF prevents the appellant from petitioning for review at the Supreme Court. For
information related to the appellate process available to service members undergoing court martial, see CRS Report
RL34697, Supreme Court Appellate Jurisdiction Over Military Court Cases, by Anna C. Henning.
212 R.C.M. 701.
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The Military Commissions Act of 2006: Background and Proposed Amendments
• It proposes excluding all involuntarily given statements by the accused, rather
than just those obtained through the use of torture or cruel, inhuman, or
degrading treatment. The voluntariness standard would entail taking into account
the “challenges and realities of the battlefield and armed conflict.” It does not
propose a requirement that battlefield captives be warned that their statements
can be used against them, as is the case in ordinary criminal prosecutions in U.S.
courts.
• The Obama Administration would retain language asserting that offenses are
codifications of the common law of war, but would eliminate the material support
charge.
• The Administration supports the Senate proposal for treating hearsay evidence,
but would adopt a somewhat different standard as to when the exception should
apply, based on whether the hearsay evidence is more probative than other
evidence that could be procured through reasonable efforts, rather than strictly on
the availability of the witness to testify.
• The Administration proposes keeping the present appellate structure intact, but
modifying the role of the Court of Military Commissions Review to make it more
like one of the services Courts of Criminal Appeals, empowering it to address
questions of fact as well as law.
• The Administration would include a 5 year sunset provision for the M.C.A.
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.
Chart 1 compares the legal authorities for establishing military tribunals, the jurisdiction over
persons and offenses, and the structures of the tribunals. Chart 2, which compares procedural
safeguards incorporated in the MCA to court-martial procedures and to proposed amendments,
follows the same order and format used in CRS Report RL31262, Selected Procedural
Safeguards in Federal, Military, and International Courts, by Jennifer K. Elsea, 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. For a comparison with previous rules
established under President Bush’s Military Order, refer to CRS Report RL33688, The Military
Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD
Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea.
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Chart 1. Comparison of Military Commission Rules
Authority
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
U.S. Constitution, Article I, § 8, in
U.S. Constitution, Article I, § 8, in particular, cl. 10, “To define
Same as for MCA.
No changes.
particular cl. 14 “To make Rules for the
and punish Piracies and Felonies committed on the high Seas,
Government and Regulation of the land
and Offences against the Law of Nations;” cl. 11, “To declare
and naval Forces.”
War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water”; and cl. 14.
Procedure
General Courts
White House Proposed
Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
Rules are provided
The Secretary of Defense may prescribe rules of evidence The Secretary of Defense may prescribe rules of procedure
In addition to the
by the Uniform
and procedure for military commissions not inconsistent
for military commissions. Such rules may not be
amendments included in S.
Code of Military
with the MCA. Rules applicable to courts-martial under
inconsistent with the MCA (as amended). Procedural rules
1390, the White House
Justice (UCMJ),
the UCMJ are to apply except as otherwise specified. 10
for general courts-martial are to apply unless the MCA or
proposal would not permit
chapter 47, title 10,
U.S.C. § 949a(a).
UCMJ provide otherwise. Consultation with the Attorney
the Secretary of Defense to
and the Rules for
The Secretary of Defense, in consultation with the
General is required only in cases of exceptions, which
provide an exception for
Courts-Martial
Attorney General, may make exceptions to UCMJ
continue to be permissible “as may be required by the
the admission of evidence
(R.C.M.) and the
procedural rules “as may be required by the unique
unique circumstances of the conduct of military and
procured through coercion
Military Rules of
circumstances of the conduct of military and intelligence
intelligence operations during hostilities or by other
or compulsory self-
Evidence (Mil. R.
operations during hostilities or by other practical need.”
practical need.”
incrimination that
Evid.), issued by the
10 U.S.C.§ 949a(b).
otherwise complies with 10
President pursuant
The rules must include certain rights as listed in
10 U.S.C. § 949a (amended as proposed).
U.S.C. § 948r. (See Chart 2
to art. 36, UCMJ,
§ 949a(b)(2), but need not include procedural rules listed
Suppression of certain evidence is a required right rather
heading “Right to Remain
10 U.S.C. § 836.
in § 949a(b)(3).
than an optional rule (see Chart 2 specific rights). The right
Silent” for proposed
Pursuant to the above authority, the Secretary of Defense to representation by civilian counsel is included. The
changes to § 948r).
published the Manual for Military Commissions (M.M.C.),
procedural rules may no longer provide that evidence shall
including the Rules for Military Commissions (R.M.C.) and be admissible if the military judge determines that it would
the Military Commission Rules of Evidence (Mil. Comm.
have “probative value to a reasonable person”.
R. Evid.).
10 U.S.C. § 949a(b) (amended as proposed).
CRS-32
Jurisdiction over Persons
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
Members of the armed forces, cadets,
Any “alien unlawful combatant” is subject
“Unprivileged enemy belligerents” having
No changes.
midshipmen, reservists while on inactive-
to trial by military commission.
engaged in hostilities or having supported
duty training, members of the National
10 U.S.C. § 948c.
hostilities against the United States is
Guard or Air National Guard when in
An “unlawful enemy combatant” is “a
subject to trial by military commission.
federal service, prisoners of war in
person who has engaged in hostilities or
custody of the armed forces, civilian
who has purposefully and materially
10 U.S.C. § 948c (amended as proposed).
employees accompanying the armed
supported hostilities against the United
The term `unprivileged enemy belligerent’
forces in time of declared war or
States or its co-belligerents”; or a person
is defined to mean “an individual (other
contingency operation, and certain
determined to be an unlawful enemy
than a privileged belligerent) who has
others, including “persons within an area
combatant by a CSRT or other
engaged in hostilities against the United
leased by or otherwise reserved or
competent tribunal established under the
States or its coalition partners; or has
acquired for the use of the United
authority of the President or the
purposeful y and material y supported
States.”
Secretary of Defense, which
hostilities against the United States or its
10 U.S.C. § 802.
determination is dispositive of status. 10
coalition partners....” “Privileged
Individuals who are subject to military
U.S.C. §§ 948a and 948d(c).
belligerent” is defined in terms of GPW
tribunal jurisdiction under the law of war
“Lawful combatant” is defined in terms of Art. 4.
may also be tried by general court
the Geneva Convention for the
martial.
Treatment of Prisoners of War (GPW)
10 U.S.C. § 948a(6-7) (amended as
10 U.S.C. § 818.
Art. 4. 10 U.S.C. § 948a(2).
proposed).
R.M.C. 201 and 202 provide for
jurisdictional requirements of military
commissions in accordance with the
MCA.
CRS-33
Jurisdiction over Offenses
General Courts
White House Proposed
Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
Any offenses made
A military commission has jurisdiction to try any offense
A military commission has jurisdiction over persons
No changes to 10 U.S.C. §
punishable by the
made punishable by the MCA or the law of war when
subject to the MCA for offenses made punishable by
948 (as amended by Senate
UCMJ; offenses
committed by an alien unlawful enemy combatant before, on,
the MCA, arts. 104 and 106 of the UCMJ, or the law
bill).
subject to trial by
or after September 11, 2001.
of war. Military commissions are expressly
military tribunal under
authorized to determine their own jurisdiction.
The proposal would eliminate
the law of war.
10 U.S.C. § 948d(a).
language requiring offenses to
10 U.S.C. § 818.
Offenses listed in 10 U.S.C. §§ 950q-w and Par IV of the
10 U.S.C. § 948d (amended as proposed).
have occurred in the context
M.M.C. include the following: murder of protected persons;
of an armed conflict to be
attacking civilians, civilian objects, or protected property;
MCA offenses remain substantially unchanged,
triable by a military
pil aging; denying quarter; taking hostages; employing poison
except that there is an express requirement that
commission, and would retain
or similar weapons; using protected persons or property as
offenses occurred “in the context of and associated
MCA language declaring that
shields; torture, cruel or inhuman treatment; intentional y
with armed conflict,” Crimes that occurred prior to
the defined offenses are
causing serious bodily injury; mutilating or maiming; murder
the enactment of the bill are not precluded to the
merely codifications of
in violation of the law of war; destruction of property in
extent that they are codifications of crimes
preexisting law. (See Chart 2
violation of the law of war; using treachery or perfidy;
traditionally triable by military commissions.
section on the prohibition of
improperly using a flag of truce or distinctive emblem;
10 U.S.C. § 950p. (amended as proposed).
ex post facto laws).
intentional y mistreating a dead body; rape; sexual assault or
abuse; hijacking or hazarding a vessel or aircraft; terrorism;
The definition of “cruel or inhuman treatment” is
10 U.S.C. § 950p.
providing material support for terrorism; wrongfully aiding
modified to refer to treatment that constitutes a
The MCA (chapter 47a of
the enemy; spying, contempt; perjury and obstruction of
grave breach of common Article 3 of the Geneva
title 10, U.S. Code) would
justice.
Conventions, regardless of where the crime takes
sunset five years from
place or the nationality of the victim. (The current
10 U.S.C. § 950v. Conspiracy (§ 950v(b)(28)), attempts (§
enactment of the NDAA
definition refers to 18 U.S.C. § 2340(2)).
950t), and solicitation (§ 950u) to commit the defined acts
FY2010 with respect to new
are also punishable.
10 U.S.C. § 950w(12) (amended as proposed).
cases).
Composition
General Courts
White House Proposed
Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
A military judge and not
A military judge and at least five members, 10 U.S.C. § 948m; R.M.C. 501, unless
10 U.S.C. § 948m would
No changes.
less than five members,
the death penalty is sought, in which case no fewer than 12 members must be
remain unchanged. 10 U.S.C.
or if requested, except in
included.10 U.S.C. § 949m(c).
§ 949m is amended to reduce
capital cases, a military
the required number of
judge alone. R.C.M. 501.
10 U.S.C. § 949m provides that, in death penalty cases where twelve members are
members to 5 in cases in
not reasonably available because of physical conditions or military exigencies, the
which twelve members are
convening authority may approve a commission with as few as 9 members.
not reasonably available.
CRS-34
Chart 2. Comparison of Procedural Safeguards
Presumption of Innocence
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
If the defendant fails to enter a proper
Before a vote is taken on the findings, the military
10 U.S.C. § 949l and 10 U.S.C.
No changes.
plea, a plea of not guilty will be entered.
judge must instruct the commission members “that
§ 949i would remain
the accused must be presumed to be innocent until
unchanged.
R.C.M. 910(b).
his guilt is established by legal and competent
Members of court-martial must be
evidence beyond reasonable doubt.”
instructed that the “accused must be
10 U.S.C. § 949l.
presumed to be innocent until the
accused’s guilt is established by legal and
If an accused refuses to enter a plea or pleads guilty
competent evidence beyond a reasonable
but provides inconsistent testimony, or if it appears
doubt.”
that he lacks proper understanding of the meaning
and effect of the guilty plea, the commission must
R.C.M. 920(e).
treat the plea as denying guilt.
The accused shall be properly attired in
10 U.S.C. § 949i.
uniform with grade insignia and any
decorations to which entitled. Physical
restraint shal not be imposed unless
prescribed by the military judge.
R.C.M. 804.
CRS-35
Right to Remain Silent (Freedom from Coerced Statements)
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
Coerced confessions or confessions
Article 31, UCMJ, is expressly made inapplicable.
10 U.S.C. § 948b(d) remains The proposal would amend §§ 949a &
made in custody without statutory
unchanged.
948r to make inadmissible al statements
equivalent of Miranda warning are not
10 U.S.C. § 948b(d).
elicited through torture or cruel,
admissible as evidence.
Confessions al egedly
Confessions allegedly elicited through coercion or
inhuman, or degrading treatment
elicited through coercion or prohibited by 42 U.S.C. § 2000dd, except
Art. 31, UCMJ, 10 U.S.C. § 831.
compulsory self-incrimination that are otherwise
compulsory self-
admissible are not to be excluded at trial unless it
against a person accused of torture or
incrimination that are
Rules of evidence provide that in most
violates section 948r. 10 U.S.C. § 949a(b)(2)(C).
such treatment. No statement of the
otherwise admissible would
cases “an involuntary statement or any
accused would be admissible at trial
continue to be admitted at
derivative evidence therefrom may not be Section 948r provides that statements elicited through
unless the military judge finds the
trial unless in violation of
received in evidence against an accused
torture may not be entered into evidence except to
statement was voluntarily given, taking
section 948r. 10 U.S.C.
who made the statement if the accused
prove a charge of torture.
into consideration all relevant
§ 949a(b)(2)(C). The bill
makes a timely motion to suppress or an
A statement obtained prior to the enactment of the
circumstances, including military and
amends section 948r to
objection to the evidence under this
DTA through coercion that does not amount to
intelligence operations during hostilities;
provide for the exclusion of
rule.”
torture is admissible if the military judge finds that
the accused’s age, education level,
statements elicited through
military training; and the change in place
Mil. R. Evid. 304.
1. the “totality of circumstances under which [it]
cruel, inhuman, or
or identity of interrogator between that
degrading treatment
The prosecutor must notify the defense
was made renders it reliable and possessing
statement and any prior questioning of
prohibited by section 1003
of any incriminating statements made by
sufficient probative value” and
the accused.
of the DTA (42 U.S.C.
the accused that are relevant to the case
2. “the interests of justice would best be served”
2000dd), regardless of
prior to the arraignment. Motions to
by admission of the statement.
when the statement was
suppress such statements must be made
made.
prior to pleading.
Statements taken after passage of the DTA would be
admissible if the military judge also finds that
Mil. R. Evid. 304.
“the interrogation methods used to obtain [them]
Interrogations conducted by foreign
do not violate the cruel, unusual, or inhumane
officials do not require warnings or
treatment or punishment prohibited by the Fifth,
presence of counsel unless the
Eighth, and Fourteenth Amendments to the U.S.
interrogation is instigated or conducted
Constitution.”
by U.S. military personnel.
10 U.S.C. § 948r.
Mil. R. Evid. 305.
Evidence derived from impermissible interrogation
methods is not barred.
CRS-36
Freedom from Unreasonable Searches and Seizures
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
“Evidence obtained as a result of an
Not provided. Evidence is generally
Amends 10 U.S.C. § 949a to authorize
No changes.
unlawful search or seizure ... is
permitted if it has probative value to a
the Secretary of Defense to provide that
inadmissible against the accused ...” unless reasonable person, unless it is obtained
“evidence seized outside the United
certain exceptions apply.
under circumstances that would render it States shall not be excluded from trial by
unreliable.
military commission on the grounds that
Mil. R. Evid. 311.
the evidence was not seized pursuant to
10 U.S.C. §§ 948r, 949a.
“Authorization to search” may be oral or
a search warrant or other authorization.”
written, and may be issued by a military
Procedural rules may provide that
judge or an officer in command of the
evidence gathered without authorization
area to be searched, or if the area is not
or a search warrant may be admitted into
under military control, with authority
evidence.
over persons subject to military law or
the law of war. It must be based on
10 U.S.C. § 949a.
probable cause.
Mil. R. Evid. 315.
Interception of wire and oral
communications within the United States
requires judicial application in accordance
with 18 U.S.C. §§ 2516 et seq.
Mil. R. Evid. 317.
A search conducted by foreign officials is
unlawful only if the accused is subject to
“gross and brutal treatment.”
Mil. R. Evid. 311(c).
CRS-37
Effective Assistance of Counsel
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
The defendant has a right to military
At least one qualifying military defense
Amends 10 U.S.C. § 948k to provide that
No changes.
counsel at government expense. The
counsel is to be detailed “as soon as
military defense counsel for a military
defendant may choose counsel, if that
practicable after the swearing of
commission “is to be detailed as soon as
attorney is reasonably available, and may
charges….”
practicable.” Amends 10 U.S.C. § 949c to
hire a civilian attorney in addition to
permit the appointment of military
military counsel.
10 U.S.C. § 948k.
counsel of the accused’s own selection, if
reasonably available.
Art. 38, UCMJ, 10 U.S.C. § 838.
The accused may also hire a civilian
attorney who
10 U.S.C. § 949c, as it relates to the
Appointed counsel must be certified as
hiring of civilian counsel, remains
qualified and may not be someone who
1. is a U.S. citizen,
substantially unchanged.
has taken any part in the investigation or
2. is admitted to the bar in any state,
prosecution, unless explicitly requested
district, or possession,
10 U.S.C. § 949b, prohibiting adverse
by the defendant.
personnel actions against defense
3. has never been disciplined,
attorneys due to “the zeal with which
Art. 27, UCMJ, 10 U.S.C. § 827.
4. has a SECRET clearance (or higher, if
such officer, in acting as counsel,
The attorney-client privilege is honored.
necessary for a particular case), and
represented any accused before a military
commission.…” also remains unchanged.
Mil. R. Evid. 502.
5. agrees to comply with all applicable
rules.
10 U.S.C. § 949c(b)(3).
If civilian counsel is hired, the detailed
military counsel serves as associate
counsel.
10 U.S.C. § 949c(b)(5).
No attorney-client privilege is mentioned.
Adverse personnel actions may not be
taken against defense attorneys because
of the zeal with which such officer, in
acting as counsel, represented any
accused before a military commission.…”
10 U.S.C. § 949b.
CRS-38
Right to Indictment and Presentment
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
The right to indictment by grand jury is
UCMJ Article 32 hearings are expressly
No substantial change to relevant
No changes.
explicitly excluded in “cases arising in the
made inapplicable. 10 U.S.C.
sections of the MCA.
land or naval forces.”
§ 948b(d)(1)(C).
Amendment V.
Charges and specifications against an
accused are to be signed by a person
UCMJ Article 32 provides for an inquiry
subject to UCMJ swearing under oath
similar to grand jury proceedings in
that the signer has “personal knowledge
federal criminal court.
of, or reason to believe, the matters set
10 U.S.C. § 832.
forth therein,” and that they are “true in
fact to the best of his knowledge and
Whenever an offense is alleged, the
belief.” The accused is to be informed of
commander is responsible for initiating a
the charges and specifications against him
preliminary inquiry and deciding how to
as soon as practicable after charges are
dispose of the offense.
sworn.
R.C.M. 303-06.
10 U.S.C. § 948q.
Right to Written Statement of Charges
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
Charges and specifications must be signed The trial counsel assigned is responsible
No substantial change to relevant
No changes.
under oath and made known to the
for serving counsel a copy of the charges
sections of the MCA.
accused as soon as practicable.
upon the accused, in English and, if
appropriate, in another language that the
Art. 30, UCMJ, 10 U.S.C. § 830.
accused understands, “sufficiently in
advance of trial to prepare a defense.”
10 U.S.C. § 948s.
CRS-39
Right to be Present at Trial
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
The presence of the accused is required
The accused has the right to be present
No substantial change to relevant
No changes.
during arraignment, at the plea, and at
at all sessions of the military commission
sections of the MCA.
every stage of the court-martial unless
except deliberation or voting, unless
the accused waives the right by
exclusion of the accused is permitted
voluntarily absenting him or herself from
under § 949d.
the proceedings after the arraignment or
by persisting in conduct that justifies the
10 U.S.C. § 949a(b)(1)(B).
trial judge in ordering the removal of the
The accused may be excluded from
accused from the proceedings.
attending portions of the proceeding if
R.C.M. 801.
the military judge determines that the
accused persists in disruptive or
dangerous conduct.
10 U.S.C. § 949d(e).
CRS-40
Prohibition Against Ex Post Facto Crimes
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
Courts-martial will not enforce an ex
Crimes punishable by military
The conspiracy charge would remain
The proposal would eliminate the charge
post facto law, including increasing
commissions under the new chapter are
available under 10 U.S.C. § 950u
of “material support for terrorism,” 10
amount of pay to be forfeited for specific
contained in subchapter VII. It includes
(amended as proposed).
U.S.C. § 950w(25). It would reinstate the
crimes.
the crime of conspiracy, which a plurality
proviso that the offenses merely codify
of the Supreme Court in Hamdan v.
10 U.S.C. § 950p would be amended to
existing law regarding offenses that are
U.S. v. Gorki, 47 M.J. 370 (1997).
Rumsfeld viewed as invalid as a charge of
provide that “[t]o the extent that the
traditionally triable by military
provisions of this subchapter codify
war crimes. 548 U.S. 557 (2006).
commission, so that persons may be tried
offenses that have traditional y been
for conduct that occurred prior to the
The Act declares that it “codif[ies]
triable under the law of war or otherwise enactment of the original MCA.
offenses that have traditional y been
triable by military commission, this
triable by military commissions,” and that
subchapter does not preclude trial for
10 U.S.C. § 950p.
“because the [defined crimes] (including
offenses that occurred before the date of
provisions that incorporate definitions in
the enactment of the National Defense
other provisions of law) are declarative of Authorization Act for Fiscal Year 2010.”
existing law, they do not preclude trial
for crimes that occurred before the date
The language that expressly provides
of enactment.”
jurisdiction without respect to when the
conduct occurred is eliminated.
10 U.S.C. § 950p.
The statute expressly provides
jurisdiction over the defined crimes,
whether committed prior to, on or after
September 11, 2001.
10 U.S.C. § 948d.
CRS-41
Protection Against Double Jeopardy
Military Commissions Act of
White House Proposed
General Courts Martial
2006
Sec. 1031 of S. 1390
Amendments to S. 1390
Double jeopardy clause applies.
“No person may, without his
No substantial change to relevant
No changes.
consent, be tried by a military
sections of the MCA.
See Wade v. Hunter, 336 US 684, 688-89
commission a second time for the
(1949).
same offense.” Jeopardy attaches
Art. 44, UCMJ prohibits former jeopardy,
when a guilty finding becomes final
provides for jeopardy to attach after
after review of the case has been
introduction of evidence.
completed.
10 U.S.C. § 844.
10 U.S.C. § 949h.
General court-martial proceeding is
The United States may not appeal an
considered to be a federal trial for double
order or ruling that amounts to a
jeopardy purposes. Double jeopardy does not finding of not guilty.
result from charges brought in state or
10 U.S.C. § 950d(a)(2).
foreign courts, although court-martial in such
cases is disfavored.
The convening authority may not
revise findings or order a rehearing in
U. S. v. Stokes, 12 M.J. 229 (C.M.A. 1982).
any case to reconsider a finding of
Once military authorities have turned service
not guilty of any specification or a
member over to civil authorities for trial,
ruling which amounts to a finding of
military may have waived jurisdiction for that
not guilty, or reconsider a finding of
crime, although it may be possible to charge
not guilty of any charge, unless there
the individual for another crime arising from
has been a finding of guilty under a
the same conduct.
specification laid under that charge,
which sufficiently alleges a violation.
See 54 AM. JUR. 2d, Military and Civil Defense
The convening authority may not
§§ 227-28.
increase the severity of the sentence
In cases in which a rehearing is ordered, the
unless the sentence prescribed for
accused may not be tried for any offense of
the offense is mandatory.
which he was found not guilty, and a sentence 10 U.S.C. § 950b(d)(2)(B).
cannot be increased unless there is a finding
of guilty of an offense not considered in the
original proceedings or the sentence
prescribed for the offense is mandatory.
Art. 63, UCMJ, 10 U.S.C. § 863.
The United States may not appeal an order or
ruling that amounts to a finding of not guilty.
Art. 62, UCMJ, 10 U.S.C. § 862.
CRS-42
Speedy and Public Trial
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
In general, accused must be brought to
There is no right to a speedy trial. Article No substantial change to relevant
No changes.
trial within 120 days of the preferral of
10, UCMJ, 10 U.S.C. § 810, is expressly
sections of the MCA.
charges or the imposition of restraint,
made inapplicable to military
whichever date is earliest.
commissions.
R.C.M. 707(a).
10 U.S.C. § 948b(d).
The right to a public trial applies in
The military judge may close all or part of
courts-martial but is not absolute.
a trial to the public only after making a
determination that such closure is
R.C.M. 806.
necessary to protect information, the
The military trial judge may exclude the
disclosure of which would be harmful to
public from portions of a proceeding for
national security interests or to the
the purpose of protecting classified
physical safety of any participant.
information if the prosecution
10 U.S.C. § 949d(d).
demonstrates an overriding need to do
so and the closure is no broader than
necessary.
United States v. Grunden, 2 M.J. 116
(CMA 1977).
CRS-43
Burden and Standard of Proof
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
Members of court martial must be
Commission members are to be
No substantial change to relevant
No changes.
instructed that the burden of proof to
instructed that the accused is presumed
sections of the MCA, except that the
establish guilt is upon the government
to be innocent until his “guilt is
provision for the exclusion of irrelevant,
and that any reasonable doubt must be
established by legal and competent
cumulative, or prejudicial evidence is
resolved in favor of the defendant.
evidence beyond reasonable doubt”; that
expressly made a right of the accused
any reasonable doubt as to the guilt of
rather than an optional rule subject to
R.C.M. 920(e).
the accused must result in acquittal; that
the discretion of the Secretary of
reasonable doubt as to the degree of guilt Defense.
must be resolved in favor of the lower
degree as to which there is no reasonable 10 U.S.C. § 949a (amended as proposed).
doubt; and that the burden of proof is on
the government.
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 Secretary of Defense may prescribe
that the military judge is to exclude any
evidence, the probative value of which is
substantial y 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.
CRS-44
Privilege Against Self-Incrimination (Freedom from Compelled Testimony)
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
No person subject to the UCMJ may
“No person shal be required to testify
No substantial change to relevant
No changes.
compel any person to answer
against himself at a commission
sections of the MCA.
incriminating questions.
proceeding.”
Art. 31(a) UCMJ, 10 U.S.C. § 831(a).
10 U.S.C. § 948r.
Defendant may not be compel ed to give
Adverse inferences drawn from a failure
testimony that is immaterial or potentially to testify are not expressly prohibited;
degrading.
however, members are to be instructed
that “the accused must be presumed to
Art. 31(c), UCMJ, 10 U.S.C. § 831(c).
be innocent until his guilt is established by
No adverse inference is to be drawn
legal and competent evidence”
from a defendant’s refusal to answer any
10 U.S.C. § 949l.
questions or testify at court-martial.
There does not appear to be a provision
Mil. R. Evid. 301(f).
for immunity of witnesses.
Witnesses may not be compelled to give
testimony that may be incriminating
unless granted immunity for that
testimony by a general court-martial
convening authority, as authorized by the
Attorney General, if required.
18 U.S.C. § 6002; R.C.M. 704.
CRS-45
Right to Examine or Have Examined Adverse Witnesses (Hearsay Prohibition)
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
Rules of Evidence prohibit generally the
“Defense counsel may cross-examine
The right to cross-examine witnesses remains
No changes with respect to
introduction at trial of statements made
each witness for the prosecution who
unchanged.
classified evidence.
out of court to prove the truth of the
testifies before the commission.”
matter stated unless the declarant is
The language addressing classified information
Hearsay evidence would be
available for cross-examination at trial
10 U.S.C. § 949c.
is amended to alter the procedure for seeking
expressly admissible under the
(hearsay rule).
protection for classified evidence, but the
same rules governing courts-
In the case of classified information, the
options for redaction or substitution remain
martial. Hearsay evidence not
Mil. R. Evid. 801 et seq.
military judge may authorize the
unchanged. The military judge is required to
admissible under court-martial
government to delete specified portions
order the use of a statement, portion, or
procedures “or otherwise
Exceptions exist for cases in which the
of evidence to be made available to the
summary if he determines that the measure “is
inadmissible” could be admitted if
statement may be presumed to be
accused, or may allow an unclassified
consistent with affording the accused a fair
the proponent gives adequate
reliable due to specific circumstances
summary or statement setting forth the
trial.” The certification by the classifying
notice to the adverse party,
(Rule 803) or the witness is unavailable in
facts the evidence would tend to prove,
authority or agency head that evidence and the
including information on the
court (Rule 804). There is also a “residual to the extent practicable in accordance
sources thereof have been declassified to the
circumstances under which the
exception” (Rule 807), which covers
with the rules used at general courts-
maximum extent possible consistent with
evidence was obtained; the hearsay
statements not covered under other
martial. 10 U.S.C. § 949d(f)(2)(A).
national security concerns is not subject to
is offered as evidence of a material
rules but having similar indicia of
review or appeal.
fact; it is more probative than other
trustworthiness. Such statements are
Hearsay evidence not admissible under
reasonably available evidence; it is
admissible if notice is provided to the
the rules of evidence applicable in trial by
10 U.S.C. § 949d (amended as proposed).
reliable, considering corroborating
adverse party sufficient to provide a fair
general courts-martial is admissible only if
evidence and indicia of reliability;
opportunity to prepare to rebut it, and if
the proponent notifies the adverse party
Hearsay evidence that would not be admissible
and the interests of justice will be
the military judge determines the
sufficiently in advance of its intention to
at a general court-martial is admissible if
served by admitting the statement
statement is more probative of the
offer the evidence and the particulars of
adequate notice if given and the military judge
into evidence. The availability of the
material fact for which it is offered than
the evidence (including information on
determines that the statement is reliable and is
witness would be immaterial to the
other reasonably available evidence and
the general circumstances under which
offered as evidence of a material fact, that
admissibility under this exception.
that its admission would serve the
the evidence was obtained), unless the
direct testimony from the witness is not
interests of justice.
party opposing the admission of the
available or would have an adverse impact on
evidence “clearly demonstrates that the
military or intelligence operations, and that the
Mil. R. Evid. 801 et seq.
evidence is unreliable or lacking in
general purposes of the rules of evidence and
probative value.” 10 U.S.C.
the interests of justice will best be served by
In capital cases, sworn depositions may
§ 949a(b)(2)(E).
admission of the statement into evidence. The
not be used in lieu of witness, unless
burden on the opposing party to demonstrate
court-martial is treated as non-capital or
unreliability or lack of probative value is
it is introduced by the defense.
eliminated, shifting the burden of persuasion to
Art. 49, UCMJ, 10 U.S.C. § 849.
the profferer of the evidence.
10 U.S.C. § 949a(b)(3) (amended as proposed).
CRS-46
Right to Compulsory Process to Obtain Witnesses
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
Defendants before court-martial have the Defense counsel is to be afforded a
Defense counsel is to be afforded a
No changes.
right to compel appearance of witnesses
reasonable opportunity to obtain
reasonable opportunity to obtain
necessary to their defense.
witnesses and other evidence, including
witnesses and other evidence, including
evidence in the possession of the United
evidence in the possession of the United
R.C.M. 703.
States, according to DOD regulations.
States, according to DOD regulations.
Process to compel witnesses in court-
The military commission is authorized to
The military commission is authorized to
martial cases is to be similar to the
compel witnesses under U.S. jurisdiction
compel witnesses under U.S. jurisdiction
process used in federal courts. Moreover, to appear. The military judge may
to appear. The military judge may
the defense and prosecution “shal have
authorize discovery in accordance with
authorize discovery in accordance with
equal opportunity to obtain witnesses
rules prescribed by the Secretary of
rules prescribed by the Secretary of
and other evidence.”
Defense to redact classified information
Defense to redact classified information
or to provide an unclassified summary or
or to provide an unclassified summary or
Art. 46, UCMJ, 10 U.S.C. § 846.
statement describing the evidence. The
statement describing the evidence. The
trial counsel is obligated to disclose
obligation to disclose exculpatory
exculpatory evidence of which he is
information is expanded to include
aware to the defense, but such
mitigating evidence, and the obligation
information, if classified, is available to the extends beyond information known to
accused only in a redacted or summary
the trial counsel to include all information
form, and only if making the information
that is known or reasonably should be
available is possible without
known to any government officials who
compromising intelligence sources,
participated in the investigation and
methods, or activities, or other national
prosecution of the case against the
security interests.
defendant. The military judge may
authorize the prosecutor to disclose such
10 U.S.C. § 949j.
information in a redacted or summary
form, and shall authorize such alternative
forms evidence when consistent with the
interests of justice.
10 U.S.C. § 949j (amended as proposed).
CRS-47
Right to Trial by Impartial Judge
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
A qualified military judge is detailed to
Military judges must take an oath to
No substantial change to relevant
No changes.
preside over the court-martial. The
perform their duties faithfully.
sections of the MCA.
convening authority may not prepare or
review any report concerning the
10 U.S.C. § 949g.
performance or effectiveness of the
The convening authority is prohibited
military judge.
from preparing or reviewing any report
Art. 26, UCMJ, 10 U.S.C. § 826.
concerning the effectiveness, fitness, or
efficiency of a military judge.
UCMJ Article 37 prohibits unlawful
influence of courts-martial through
10 U.S.C. § 948j(a).
admonishment, censure, or reprimand of
A military judge may not be assigned to a
its members by the convening authority
case in which he is the accuser, an
or commanding officer, or any unlawful
investigator, a witness, or a counsel.
attempt by a person subject to the UCMJ
to coerce or influence the action of a
10 U.S.C. § 948j(c).
court-martial or convening authority.
The military judge may not consult with
Art. 37, UCMJ, 10 U.S.C. § 837.
the members of the commission except
in the presence of the accused, trial
counsel, and defense counsel, nor may he
vote with the members of the
commission.
10 U.S.C. § 948j(d).
Convening authority may not censure,
reprimand, or admonish the military
judge. No person may attempt to coerce
or use unauthorized means to influence
the action of a commission.
10 U.S.C. § 949b.
The military judge may be challenged for
cause.
10 U.S.C. § 949f.
CRS-48
Right to Trial by Impartial Jury
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
A military accused has no Sixth
Military commission members must take
No substantial change to relevant
No changes.
Amendment right to a trial by petit jury.
an oath to perform their duties faithful y.
sections of the MCA.
Ex Parte Quirin, 317 U.S. 1, 39-40 (1942)
10 U.S.C. § 949g.
(dicta).
The accused may make one peremptory
However, “Congress has provided for
challenge, and may challenge other
trial by members at a court-martial.”
members for cause.
United States v. Witham, 47 M.J. 297, 301 10 U.S.C. § 949f.
(1997); Art. 25, UCMJ, 10 U.S.C. § 825.
No convening authority may censure,
The Sixth Amendment requirement that
reprimand, or admonish the commission
the jury be impartial applies to court-
or any member with respect to the
martial members and covers not only the
findings or sentence or the exercise of
selection of individual jurors, but also
any other functions in the conduct of the
their conduct during the trial proceedings proceedings. No person may attempt to
and the subsequent deliberations.
coerce or, by any unauthorized means,
influence the action of a commission or
United States v. Lambert, 55 M.J. 293
any member thereof, in reaching the
(2001).
findings or sentence in any case. Military
The absence of a right to trial by jury
commission duties may not be
precludes criminal trial of civilians by
considered in the preparation of an
court-martial.
effectiveness report or any similar
document with potential impact on
Reid v. Covert, 354 U.S. 1 (1957);
career-advancement.
Kinsella v. United States ex rel. Singleton,
361 U.S. 234 (1960).
10 U.S.C. § 949b.
CRS-49
Right to Appeal to Independent Reviewing Authority
White House Proposed
Amendments
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
to S. 1390
The accused may submit matters concerning the findings and
The accused may submit matters for consideration
No substantial change to
The proposal would
the sentence for consideration by the convening authority.
by the convening authority with respect to the
10 U.S.C. § 950b.
modify the appeals process
The convening authority may approve, disapprove, commute,
authenticated findings or sentence of the military
to reinstate the Court of
or suspend the sentence in whole or in part, set aside a finding commission. The convening authority must review
The MCA is amended to
Military Commission
of guilty or change a finding of guilty to a charge or
timely submissions prior to taking action.
substitute the Court of
Appeals in a role similar to
specification to a finding of guilty to an offense that is a lesser
Appeals of the Armed
that of the Services’
included offense of the offense stated in the charge or
10 U.S.C. § 950b.
Services (CAAF) rather
respective Courts of
specification.
than the Court of Military
The accused may appeal a final decision of the
Criminal Appeals, except
Commission Review as
that all cases in which the
Art. 60, UCMJ, 10 U.S.C. § 860.
military commission with respect to issues of law
the exclusive appellate
to the Court of Military Commission Review, a
convening authority has
court. The CAAF’s scope
Certain judgments of courts-martial, depending on the severity new body comprised of appellate military judges
approved a sentence are
of review would include
of the sentence, are directly appealable to the respective
who meet the same qualifications as military judges
referred (unless waived by
questions of fact as well
Service’s Court of Criminal Appeals, which reviews the
or comparable qualifications for civilian judges.
the accused) for review of
as law, and the CAAF
findings and sentence as approved by the convening authority,
the record with respect to
would have the authority
considering questions of both fact and law. In the event it sets
10 U.S.C. § 950f.
any matter properly raised
to order charges
aside a judgment, it may order a rehearing unless its act was
Once these appeals are exhausted, the accused
by the accused (including
dismissed. Any CAAF
based on insufficiency of evidence in the record to support the may appeal the final decision to the United States
questions of fact as well as
decision may be appealed
findings, in which case it must order a dismissal.
Court of Appeals for the District of Columbia
law).
to the Supreme Court
Art. 66, UCMJ, 10 U.S.C. § 866.
Circuit, which is limited to reviewing questions of
through writ of certiorari. The U.S. Court of Appeals
law regarding “whether the final decision was
for the District of
The accused may petition for review of a Court of Criminal
consistent with the standards and procedures
10 U.S.C. §§ 950c – 950g
Columbia Circuit would
Appeals decision to the Court of Appeals for the Armed
specified in [the MCA] and to the extent
(amended as proposed).
serve as the exclusive
Forces, a court of civilian judges that is empowered to act only applicable, the Constitution and the laws of the
Current 10 U.S.C. § 950f,
appellate jurisdiction,
with respect to matters of law.
United States.” D.C. Cir. appellate decisions may
establishing the Court of
without the restrictions
be reviewed by the Supreme Court under writ of
Military Commission
Art. 67, UCMJ, 10 U.S.C. § 867.
on scope and standard of
certiorari.
Review, is repealed. The
review in the MCA as
CAAF decisions, other than denials to hear a case, may be
appellate role of the U.S.
10 U.S.C. § 950g.
currently enacted. The
appealed to the Supreme Court through writ of certiorari.
Court of Appeals for the
CAAF would not have a
Other review by a civilian court, including review
District of Columbia
Art. 67a, UCMJ, 10 U.S.C. § 867a.
role. Appeal to the
on petition of habeas corpus, is expressly
Circuit is abolished.
Supreme Court through
The writ of habeas corpus provides the primary means by
prohibited.
Language precluding
writ of certiorari would
which those sentenced by military court, having exhausted
10 U.S.C. § 950j (likely unconstitutional under
habeas corpus and other
continue to be permitted
military appeals, can challenge a conviction or sentence in a
Boumediene v. Bush, 533 U.S. __, 123 S. Ct. 2229
judicial relief is eliminated. pursuant to 28 U.S.C.
civilian court. The scope of matters that a court will address is
(2008)(holding § 7 of the MCA to be invalid
§ 1257.
narrower than in challenges of federal or state convictions.
suspension of the writ of habeas corpus)).
Burns v. Wilson, 346 U.S. 137 (1953).
CRS-50
Protection Against Excessive Penalties
White House Proposed
General Courts Martial
Military Commissions Act of 2006
Sec. 1031 of S. 1390
Amendments to S. 1390
Death may only be adjudged for
Military commissions may adjudge “any
Military commissions may adjudge
No changes, other than technical
certain crimes where the defendant is
punishment not forbidden by [the MCA] or the
“any punishment not forbidden by
amendments to reflect proposed
found guilty by unanimous vote of
law of war, including the penalty of death….”
[the MCA], including the penalty of
appel ate structure.
court-martial members present at the
death when specifically authorized....”
time of the vote. Prior to arraignment, 10 U.S.C. § 948d.
the trial counsel must give the defense
10 U.S.C. § 948d (amended as
A vote of two-thirds of the members present is
written notice of aggravating factors
proposed).
required for sentences of up to 10 years. Longer
the prosecution intends to prove.
sentences require the concurrence of three-
10 U.S.C. § 950m remains
R.C.M. 1004.
fourths of the members present. The death
substantially the same, although the
penalty must be approved unanimously on a
minimum number of panel members
A conviction of spying during time of
unanimous guilty verdict. Where the death
in capital cases is reduced from 9 to 5
war under UMCJ Article 106 carries a
penalty is sought, a panel of 12 members is
where 12 members are not
mandatory death penalty.
required (unless not “reasonably available”). The
“reasonably available.”
death penalty must be expressly authorized for
10 U.S.C. § 906.
the offense, and the charges must have expressly 10 U.S.C. § 950c remains substantial y
unchanged, except for the
Cruel and unusual punishments are
sought the penalty of death.
substitution of the CAAF for the
prohibited.
10 U.S.C. § 949m.
Court of Military Commission
Art. 55, UCMJ, 10 U.S.C. § 855.
Review.
An accused who is sentenced to death may
In capital cases, “equal opportunity to
waive his appeal, but may not withdraw an
The death sentence may not be
obtain witnesses and other evidence”
appeal.
executed until CAAF review is
under Art. 46, U.C.M.J. may entitle the
completed and a petition for a writ of
10 U.S.C. § 950c.
accused to expert assistance at the
certiorari is not timely filed, the
Government’s expense .
The death sentence may not be executed until
Supreme Court has denied review or
the commission proceedings have been finally
completed its review of the case, and
United States v. Kreutzer, 61 M.J. 293
adjudged lawful and the time for filing a writ has
the President approves the sentence.
(CAAF 2005).
expired or the writ has been denied; and the
10 U.S.C. § 950h (amended as
If a sentence extends to death,
President approves the sentence.
proposed).
dismissal, or a dishonorable or bad
10 U.S.C. § 950i.
conduct discharge, that part of the
sentence may not be executed until
In capital cases, the accused is not entitled to
required approval is given and all
assistance of counsel with expertise in death
appeals are exhausted or waived.
penalty cases.
Art. 71, UCMJ, 10 U.S.C. § 871.
10 U.S.C. § 949a (civilian counsel only authorized
if provided at no expense of the government).
CRS-51
The Military Commissions Act of 2006: Background and Proposed Amendments
Author Contact Information
Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
Congressional Research Service
52