Comparison of Rights in
Military Commission Trials and
Trials in Federal Criminal Court
Jennifer K. Elsea
Legislative Attorney
May 9, 2012
Congressional Research Service
7-5700
www.crs.gov
R40932
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Comparison of Military Commission Trials and Trials in Federal Criminal Court
Summary
The initiation of military commission proceedings against Khalid Sheik Mohammad and four
others for their alleged involvement in the 9/11 terrorist attacks has focused renewed attention on
the differences between trials in federal court and those conducted by military commission. The
decision to try the defendants in military court required a reversal in policy by the Obama
Administration, which had publicly announced in November 2009 its plans to transfer the five
detainees from the U.S. Naval Station in Guantanamo Bay, Cuba, into the United States to stand
trial in the U.S. District Court for the Southern District of New York for criminal offenses related
to the 9/11 attacks. The Administration’s plans to try these and possibly other Guantanamo
detainees in federal court proved controversial, and Congress responded by enacting funding
restrictions which effectively barred any non-citizen held at Guantanamo from being transferred
into the United States, including for prosecution. These restrictions, which have been extended
for the duration of FY2012, effectively make military commissions the only viable option for
trying detainees held at Guantanamo for the foreseeable future, and have resulted in the
Administration choosing to reintroduce charges against Mohammed and his co-defendants before
a military commission.
While military commission proceedings have been instituted against some suspected enemy
belligerents held at Guantanamo, the Obama Administration has opted to bring charges in federal
criminal court against terrorist suspects arrested in the United States, as well as some terrorist
suspects who were taken into U.S. custody abroad but who were not transferred to Guantanamo.
The Administration’s choice of forums in which to prosecute certain terrorist suspects, including
those believed to be associated with Al Qaeda, has focused attention on the procedural differences
between trials in federal court and those conducted under the Military Commissions Act (P.L.
109-366), as amended by the Military Commissions Act of 2009 (P.L. 111-84, Title XVIII). Some
who oppose the use of federal criminal courts argue that bringing detainees to the United States
for trial poses a security threat and risks disclosing classified information, or could result in the
acquittal of persons who are guilty. Others have praised the efficacy and fairness of the federal
court system and have argued that it is suitable for trying terrorist suspects and wartime detainees,
and have also voiced confidence in the courts’ ability to protect national security while achieving
justice that will be perceived as such among U.S. allies abroad. Some continue to object to the
trials of detainees by military commission, despite the amendments Congress enacted as part of
the Military Commissions Act of 2009, because they say it demonstrates a less than full
commitment to justice or that it casts doubt on the strength of the government’s case against those
detainees.
This report provides a brief summary of legal issues raised by the choice of forum for trying
accused terrorists and a chart comparing selected military commissions rules under the Military
Commissions Act, as amended, to the corresponding rules that apply in federal court. The chart
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 international criminal tribunals. For similar charts comparing military
commissions as envisioned under the MCA, as originally passed in 2006, to the rules that had
been established by DOD for military commissions and to general military courts-martial
conducted under the Uniform Code of Military Justice (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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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Contents
Introduction...................................................................................................................................... 1
Background...................................................................................................................................... 2
Forum Choice for Terror Suspects................................................................................................... 4
Sources of Rights....................................................................................................................... 5
Federal Court............................................................................................................................. 6
Military Commissions ............................................................................................................... 9
Comparison of Authorities and Procedural Rights ........................................................................ 10
Chart 1. Comparison of Rules ................................................................................................. 11
Authority ........................................................................................................................... 11
Procedure........................................................................................................................... 11
Jurisdiction over Persons................................................................................................... 12
Jurisdiction over Offenses................................................................................................. 12
Composition ...................................................................................................................... 13
Chart 2. Comparison of Procedural Safeguards ...................................................................... 13
Presumption of Innocence................................................................................................. 13
Right to Remain Silent (Freedom from Coerced Statements)........................................... 13
Freedom from Unreasonable Searches and Seizures......................................................... 15
Effective Assistance of Counsel ........................................................................................ 16
Right to Indictment and Presentment ................................................................................ 17
Right to Written Statement of Charges.............................................................................. 17
Right to Be Present at Trial ............................................................................................... 18
Prohibition Against Ex Post Facto Crimes........................................................................ 18
Protection Against Double Jeopardy ................................................................................. 19
Speedy and Public Trial..................................................................................................... 20
Burden and Standard of Proof ........................................................................................... 20
Privilege Against Self-Incrimination (Freedom from Compelled Testimony) .................. 21
Right to Examine or Have Examined Adverse Witnesses (Hearsay Prohibition,
Classified Information) .................................................................................................. 22
Right to Compulsory Process to Obtain Witnesses (Discovery) ....................................... 23
Right to Trial by Impartial Judge ...................................................................................... 24
Right to Trial by Impartial Jury......................................................................................... 25
Right to Appeal to Independent Reviewing Authority ...................................................... 25
Protection Against Excessive Penalties............................................................................. 26
Contacts
Author Contact Information........................................................................................................... 27
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Introduction
The Obama Administration’s decision to try certain wartime detainees and other terrorist suspects
in federal criminal court while trying others by military commission has focused attention on the
procedural differences between trials in federal court and those conducted under the Military
Commissions Act, as amended. Some who are opposed to the decision argue that bringing
wartime detainees into the United States for trial poses a security threat and risks disclosing
classified information, or could more readily result in the acquittal of persons who are guilty. In
addition, some have argued that terrorists captured in the United States could better be exploited
for intelligence purposes if they are kept out of the criminal justice system. Others have praised
the decision as recognizing the efficacy and fairness of the federal court system and have voiced
confidence in the courts’ ability to protect national security while achieving justice that will be
perceived as such, particularly among U.S. allies abroad. They argue that terrorist suspects
subjected to criminal trial in federal court have been subject to interrogation for intelligence
purposes without undermining the government’s ability to win a guilty verdict. Some continue to
object to the planned trials of detainees by military commission, despite the amendments
Congress enacted as Title XVIII of the National Defense Authorization Act for Fiscal Year 2010
(Military Commissions Act of 2009), P.L. 111-84, because they say it demonstrates a less than
full commitment to justice or that it casts doubt on the strength of the government’s case against
those detainees.
The initiation of military commission proceedings against Khalid Sheik Mohammad and four
others for their alleged involvement in the 9/11 terrorist attacks has focused renewed attention on
the differences between trials in federal court and those conducted by military commission. The
decision to try the defendants in military court required a reversal in policy by the Obama
Administration, which had publicly announced in November 2009 its plans to transfer the five
detainees from the U.S. Naval Station in Guantanamo Bay, Cuba, into the United States to stand
trial in the U.S. District Court for the Southern District of New York for criminal offenses related
to the 9/11 attacks. The Administration’s plans to try some Guantanamo detainees in federal
civilian court proved controversial, and Congress responded by enacting funding restrictions
which barred any non-citizen held at Guantanamo from being transferred into the United States
for any purpose, including prosecution.1 These restrictions, which have been extended for the
duration of FY2012,2 effectively make military commissions the only viable option for trying
detainees held at Guantanamo for the foreseeable future, and have resulted in the Administration
choosing to reintroduce charges against Mohammed and his co-defendants before a military
commission.
1 E.g., Ike Skelton National Defense Authorization Act for FY2011 (2011 NDAA), P.L. 111-383, § 1032 (barring
military funds from being used to transfer or assist in the transfer of Guantanamo detainees into the United States);
Department of Defense and Full-Year Continuing Appropriations Act, 2011, (2011 CAA), P.L. 112-10, § 1112
(applying to funds appropriating under the act or any other measure). For further discussion, see CRS Report R40754,
Guantanamo Detention Center: Legislative Activity in the 111th Congress, by Michael John Garcia.
2 National Defense Authorization Act for FY2012 (2012 NDAA), P.L. 112-81, § 1026 (applying to funds authorized to
be appropriated or otherwise made available to the Department of Defense for fiscal year 2012); Consolidated and
Further Continuing Appropriations Act, 2012 (2012 Minibus), P.L. 112-55, § 532 (providing that “[n]one of the funds
appropriated or otherwise made available in this or any other Act may be used to transfer, release, or assist in the
transfer or release to or within the United States, its territories, or possessions” any detainee held at Guantanamo);
Consolidated Appropriations Act, 2012 (2012 CAA), P.L. 112-74, Div. A, § 8119, Div. H, §511 (similar).
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While military commission proceedings have been instituted against a number of suspected
enemy belligerents held at Guantanamo, the Obama Administration has opted to bring charges in
federal criminal court against many terrorist suspects held at locations other than Guantanamo.
On July 5, 2011, Somali national Ahmed Abdulkadir Warsame was brought to the United States to
face terrorism-related charges in a civilian court, after having reportedly been detained on a U.S.
naval vessel for two months for interrogation by military and intelligence personnel.3 Some
argued that Warsame should have remained in military custody abroad and face trial before a
military commission, while others argued that he should have been transferred to civilian custody
immediately. Similar controversy also arose regarding the arrest by U.S. civil authorities and
subsequent prosecution of Umar Farouk Abdulmutallab and Faisal Shahzad, who some argued
should have been detained and interrogated by military authorities and tried by military
commission.4
This report provides a brief summary of legal issues raised by the choice of forum for trying
accused terrorists and a chart comparing authorities and composition of the federal courts to those
of military commissions. A second chart compares selected military commissions rules under the
Military Commissions Act, as amended by the Military Commissions Act of 2009, to the
corresponding rules that apply in federal court. This chart 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 international criminal tribunals. For
similar charts comparing military commissions as envisioned under the MCA, as passed in 2006,
to the rules that had been established by DOD for military commissions and to general military
courts-martial conducted under the Uniform Code of Military Justice (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. For
additional analysis of issues related to the disposition of Guantanamo detainees, including
possible trials in federal or military courts, see CRS Report R40139, Closing the Guantanamo
Detention Center: Legal Issues, by Michael John Garcia et al.
Background
On January 22, 2009, President Barack Obama issued an Executive Order requiring that the
Guantanamo detention facility, which continues to house just under 200 aliens detained in
connection with post-9/11 military operations, be closed no later than a year from the date of the
Order.5 The Order established a task force (“Guantanamo Task Force”) to review all Guantanamo
detentions to assess whether each detainee should continue to be held by the United States, be
transferred or released to another country, or be prosecuted by the United States for criminal
offenses. Ongoing military commissions were essentially halted during this review period,
3 Peter Finn and Karen DeYoung, In Detention Case, a Blend of Two Systems, WASH. POST, July 6, 2011, at A02,
available at http://www.washingtonpost.com/national/national-security/in-somali-terror-suspects-case-administration-
blends-military-civilian-systems/2011/07/06/gIQAQ4AJ1H_story.html.
4 Umar Farouk Abdulmutallab is a Nigerian national accused of trying to destroy an airliner traveling from Amsterdam
to Detroit on Christmas Day 2009. He was apprehended and interrogated by civilian law enforcement before being
charged in an Article III court, where he was sentenced to life imprisonment. Faisal Shahzad, a naturalized U.S. citizen
originally from Pakistan, was arrested by civilian law enforcement and convicted in federal court for his attempt to
detonate a bomb in New York’s Times Square in 2010.
5 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.
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although some pretrial proceedings continued to take place. One detainee, Ahmed Ghailani, was
transferred in June 2009 to the Southern District of New York for trial in federal court on charges
related to his alleged role in the 1998 East Africa Embassy bombings, and was subsequently
convicted and sentenced to life imprisonment.6
President Obama’s Detention Policy Task Force7 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 any trials of detainees.8 The disposition of each case
referred for criminal prosecution is to be assigned to a team comprised of DOJ and DOD
personnel, including prosecutors from the Office of Military Commissions. The report also
provided a set of criteria to govern the disposition of cases involving Guantanamo detainees. In
addition to “traditional principles of federal prosecution,” the 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.
On November 13, 2009, Attorney General Holder announced his decision to transfer five “9/11
conspirators”—Khalid Sheikh Mohammed, Walid Muhammed Salih Mubarak Bin Attash, Ramzi
Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi—to the Southern District of
New York to stand trial,9 and charges that had previously been brought before these individuals
before military commissions were withdrawn without prejudice in January 2010.10
On January 22, 2010, the Guantanamo Task Force issued its final report concerning the
appropriate disposition of each detainee held at Guantanamo. The Task Force concluded that 36
detainees remained subject to active criminal investigations or prosecutions; 48 detainees should
remain in preventive detention without criminal trial, as they are “too dangerous to transfer but
6 For information about the Ghailani case and other federal court cases involving putative enemy combatants, see CRS
Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by Jennifer K. Elsea
and Michael John Garcia.
7 This entity was created by Executive Order 13493, “Review of Detention Policy Options,” 74 Federal Register 4901
(January 22, 2009).
8 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.
9 Press Release, U.S. Department of Justice, “Departments of Justice and Defense Announce Forum Decisions for Ten
Guantanamo Detainees,” November 13, 2009, available at http://www.justice.gov/opa/pr/2009/November/09-ag-
1224.html.
10 Press Release, U.S. Department of Defense, “Military Commission Charges Withdrawn in Sept. 11 Case,” Jan. 22,
2010, available at http://www.defense.gov/releases/release.aspx?releaseid=13262.
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not feasible for prosecution”; and the remaining detainees may be transferred, either immediately
or eventually, to a foreign country.11
The Administration’s plans to bring Khalid Sheik Mohammed and other Guantanamo detainees
into the United States proved controversial and elicited opposition from many lawmakers.
Beginning in 2009, Congress began placing funding restrictions in annual appropriations and
authorization measures which limited executive discretion to transfer or release Guantanamo
detainees into the United States.12 These restrictions have become more stringent over time, and
beginning in the 2011 fiscal year, Congress has barred funds from being used to transfer
Guantanamo detainees into the United States for any purpose, including criminal prosecution.13
Because no civilian court operates at Guantanamo, these limitations have effectively made
military commissions the only viable option for trying Guantanamo detainees for criminal activity
for the foreseeable future. Current funding restrictions only apply to the transfer of detainees held
at Guantanamo. They do not bar wartime detainees held by the United States in Afghanistan or
other locations from being brought into the United States, including potentially to face trial in
federal court.
In March 2011, the Secretary of Defense Robert Gates announced that the government would
resume the filing of charges before military commissions at Guantanamo.14 Shortly thereafter,
Attorney General Eric Holder announced that that the Obama Administration had reversed course
on plans to bring the Khalid Sheik Mohammed and his alleged co-conspirators into the United
States to face trial in federal court, and stated that they would instead be tried before a military
commission at Guantanamo.15 In April 2012, charges were referred to a military commission
against Khalid Sheikh Mohammed, Walid Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali,
and Mustafa Ahmed Al Hawsawi for their alleged involvement in the 9/11 attacks.
Forum Choice for Terror Suspects
U.S. law provides for the trial of suspected terrorists, including those captured abroad, in several
ways. Those who are accused of violating specific federal laws are triable in federal criminal
court. Provisions in the U.S. Criminal Code relating to war crimes and terrorist activity apply
extraterritorially and may be applicable to some detainees.16 Those accused of violating the law of
war or committing the offenses enumerated in the Military Commissions Act (MCA), as amended
11 Guantanamo Review Task Force, Final Report, January 22, 2010, available at http://www.justice.gov/ag/
guantanamo-review-final-report.pdf.
12 See generally CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress, by
Michael John Garcia.
13 2011 NDAA, P.L. 111-383, §1032 (applying to military funds for FY2011); 2011 CAA, P.L. 112-10, § 1112
(applying to all funds appropriated in FY2011); 2012 NDAA, P.L. 112-81, § 1026 (applying to military funds
authorized to be appropriated or otherwise made for fiscal year 2012); 2012 Minibus, P.L. 112-55, § 532 (applying to
funds appropriated or made available in FY2012); 2012 CAA, P.L. 112-74, Div. A, §8119, Div. H, § 511 (similar).
14 Press Release, U.S. Department of Defense, “Statement by Defense Secretary Robert Gates on Resumption of
Military Commission Charges.” Mar. 7, 2011, available at http://www.defense.gov/news/newsarticle.aspx?id=63063.
15 See Charlie Savage, “In a Reversal, Military Trials for 9/11 Cases,” New York Times, Apr. 4, 2011, available at
http://www.nytimes.com/2011/04/05/us/05gitmo.html?_r=1&ref=khalidshaikhmohammed.
16 See, e.g., 18 U.S.C. chapter 113B (terrorism-related offenses); 18 U.S.C. § 2441 (war crimes).
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by the Military Commissions Act of 2009,17 may be tried by military commissions under the
MCA, or by general court-martial under the UCMJ.18
The procedural protections afforded to the accused in each of these forums may differ. The MCA
authorizes the establishment of military commissions with jurisdiction to try alien “unprivileged
enemy belligerents”19 for offenses made punishable by the MCA or the law of war.
Notwithstanding the recent amendments to the MCA, which generally enhance due process
guarantees for the accused, critics continue to question their constitutionality.
One issue that has been raised by proponents of the use of military commissions is the concern
that federal criminal courts would endow accused terrorists with constitutional rights they would
not otherwise enjoy. The MCA does not restrict military commissions from exercising jurisdiction
within the United States, and the Supreme Court has previously upheld the use of military
commissions against “enemy belligerents” tried in the United States under procedural rules that
differed from the federal rules.20 The Supreme Court has not settled the question regarding the
extent to which constitutional guarantees apply to aliens detained at Guantanamo, making any
difference in rights due to location of the trials difficult to predict. Some view the unpredictability
of the Supreme Court’s acceptance of the military commission procedures as a factor in favor of
using civilian trial courts.
Sources of Rights
The Fifth Amendment to the Constitution provides that “no person shall be ... deprived of life,
liberty, or property, without due process of law.” Due process includes the opportunity to be heard
whenever the government places any of these fundamental liberties at stake. The Constitution
contains other explicit rights applicable to various stages of a criminal prosecution. Criminal
proceedings provide both the opportunity to contest guilt and to challenge the government’s
conduct that may have violated the rights of the accused. The system of procedural rules used to
conduct a criminal hearing, therefore, serves as a safeguard against violations of constitutional
rights that take place outside the courtroom, for example, during arrests and interrogations.
The Bill of Rights applies to all citizens of the United States and all aliens within the United
States.21 However, the methods of application of constitutional rights, in particular the remedies
17 Title XVIII of the National Defense Authorization Act for Fiscal Year 2010, P.L. 111-84.
18 See 10 U.S.C. § 818 (jurisdiction of general court-martial over any person triable under the law of war). The
jurisdiction of common law military commissions under the UCMJ is also preserved to try “offenders or offenses that
by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.” 10
U.S.C. § 821. No proposals have been floated to use general courts-martial or military commissions under the UCMJ to
try Guantanamo detainees. This report will discuss federal court trials and trials under the Military Commissions Act of
2009.
19 This term replaces “alien unlawful enemy combatant” who were subject to jurisdiction under the Military
Commissions Act of 2006.
20 See Ex parte Quirin, 317 U.S. 1, 31 (upholding military commissions used to try eight German saboteurs in the
United States).
21 Zadyvydas v. Davis, 533 U.S. 678, 693 (2001). ("the Due Process Clause applies to all ‘persons’ within the United
States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent”); Wong Wing v.
United States, 163 U.S. 228, 238 (1896) ("all persons within the territory of the United States are entitled to the
protection guarantied by [the Fifth and Sixth Amendments], and … aliens shall not be held to answer for a capital or
other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property
without due process of law”).
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available to those whose rights might have been violated, may differ depending on the severity of
the punitive measure the government seeks to take and the entity deciding the case. The
jurisdiction of various entities to try a person accused of a crime could have a profound effect on
the procedural rights of the accused. The type of judicial review available also varies and may be
crucial to the outcome.
International law also contains some basic guarantees of human rights, including rights of
criminal defendants and prisoners. Treaties to which the United States is a party are expressly
made a part of the law of the land by the Supremacy Clause of the Constitution22 and may be
codified through implementing legislation,23 or in some instances, may be directly enforceable by
the judiciary.24 International law is incorporated into U.S. law,25 but does not take precedence
over statute. The law of war, a subset of international law, applies to cases arising from armed
conflicts (i.e., war crimes).26 It remains unclear how the law of war applies to the current
hostilities involving non-state terrorists, and the nature of the rights due to accused terrorist/war
criminals may depend in part on their status under the Geneva Conventions. The Supreme Court
has ruled that Al Qaeda fighters are entitled at least to the baseline protections applicable under
Common Article 3 of the Geneva Conventions,27 which includes protection from the “passing of
sentences and the carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.”28
Federal Court
The federal judiciary is established by Article III of the Constitution and consists of the Supreme
Court and “inferior tribunals” established by Congress.29 It is a separate and co-equal branch of
the federal government, independent of the executive and legislative branches, designed to be
insulated from the public passions. Its function is not to make law, but rather to interpret law and
decide disputes arising under it. Federal criminal law and procedures are enacted by Congress and
codified primarily in title 18 of the U.S. Code. The Supreme Court promulgates procedural rules
for criminal trials at the federal district courts, subject to Congress’s approval. These rules,
namely the Federal Rules of Criminal Procedure (Fed. R. Crim. P.) and the Federal Rules of
Evidence (Fed. R. Evid.), incorporate procedural rights that the Constitution and various statutes
22 U.S. CONST. art. VI (“[A]ll Treaties ... shall be the Supreme Law of the Land; ...”).
23 See, e.g. 18 U.S.C. § 2441 (War Crimes Act).
24 Treaty provisions that are self-executing are binding on the courts in the absence of implementing legislation. See
RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 113 (1987). Most human rights treaties, however, are not likely to be
held self-executing.
25 Id. § 111.
26 For a brief explanation of the sources of the law of war, see generally CRS Report RL31191, Terrorism and the Law
of War: Trying Terrorists as War Criminals before Military Commissions, by Jennifer K. Elsea.
27 Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006).
28 The Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, art. 3 § 1(d), 6 U.S.T.
3317). The identical provision is included in each of the four Geneva Conventions and applies to any “conflict not of an
international character.” The majority declined to accept the President’s interpretation of Common Article 3 as
inapplicable to the conflict with Al Qaeda and interpreted the phrase “in contradistinction to a conflict between
nations,” which the Geneva Conventions designate a “conflict of international character.”
29 U.S. CONST. art. III, § 1.
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demand. The charts provided at the end of this report cite relevant rules or court decisions, but
make no effort to provide an exhaustive list of authorities.
There is historical precedent for using federal courts to try those accused of terrorism or war
related offenses, including some that might under some circumstances be characterized as
“violations of the law or war.” The U.S. Constitution empowers Congress to “define and punish
Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”30
The First Congress provided for the punishment of persons who committed murder or robbery or
the like on the high seas, declaring that each offender was to be “taken and adjudged to be a pirate
and felon and being thereof convicted,” would be sentenced to death.31 In 1798, Attorney General
Charles Lee advised Secretary of State Timothy Pickering that federal courts were fully
competent to try and punish pirates, whether U.S. citizens or aliens.32 Federal courts exercised
jurisdiction in many such cases.33
More recently, several high-profile prosecutions involving terrorism abroad have resulted in
federal convictions. The 1985 hijacking of the Achille Lauro by Palestinian Liberation
Organization (PLO) terrorists resulted in the federal conviction of a Lebanese suspect on charges
of aircraft piracy and hostage-taking, notwithstanding the defendant’s claim to have been merely
following military orders.34 Federal courts also handled prosecutions related to the 1993 bombing
of the World Trade Center in New York City, the 2000 bombing of the U.S.S. Cole in the Gulf of
Aden, and the 1998 U.S. Embassy bombings in Africa.
In March 2010, the Department of Justice released a list of terrorism trials conducted since 2001,
and reported a total of 403 unsealed convictions from September 11, 2001 to March 18, 2010.35
Around 60% of these convictions are charged under criminal code provisions that are not facially
terrorism offenses, including such offenses as fraud, immigration violations, firearms offenses,
drug-related offenses, false statements, perjury, obstruction of justice, and general conspiracy
charges under 18 U.S.C. § 371, some of which may not have law-of-war analogs that would
permit their trial by military commissions.36 The remaining 40 % are what the Justice Department
30 U.S. CONST. art .I, § 8, cl. 10.
31 Act of April 30, 1790, 1 Stat. 112. Current statutes provide for life imprisonment for piracy as defined by the law of
nations, 18 U.S.C. § 1651; for citizens engaged in hostilities against the United States, id. § 1652; for aliens taken on
the high seas making war against the United States in violation of a treaty, id. § 1653. Lesser punishments are available
for other piracy or privateering offenses under chapter 81 of title 18, U.S. code.
32 1 Op. Att’y. Gen. 83-84 (1798) (recommending that accused pirates be tried in New Jersey). See also 1 Op. Att’y
Gen 185 (1815) (those committing piratical acts outside the jurisdiction of any state should be tried in the federal
district where the offender is apprehended or first brought after capture).
33 See, e.g. United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818); United States v. Holmes, 18 (5 Wheat.) 412 (1820);
United States v. Furlong, 18 U.S. (5 Wheat.) 184 (1820) (jurisdiction over offenses committed using U.S. vessel);
Miller v. United States, 88 F.2d 102.(9th Cir. 1937); Daeche v. United States, 250 F. 566 (2d Cir. 1918) (defendants
were accused of conspiring to aid Germany by attaching to munition-bearing ships in U.S. waters “infernal machines
which would explode while they were on the high seas”). See also The Ambrose Light, 25 F. 408 (S.D.N.Y. 1885)
(depredations on the high seas committed without authority of from any sovereign power is piracy under the law of
nations).
34 United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991).
35 Fact Sheet, Statistics on Unsealed International Terrorism and Terrorism-Related Convictions, available online at
http://www.fas.org/irp/agency/doj/doj032610-stats.pdf. Although the Fact Sheet was originally posted on the
Department of Justice’s website, it no longer appears to be available.
36 Some of the offenses, categorized as Category II offenses in the report are comparable to offenses under the MCA,
such as Arsons and Bombings (18 U.S.C. §§ 842(m), 842(n), 844(f), 844(I)); Killings in the Course of Attack on a
Federal Facility (18 U.S.C. § 930(c)); Genocide (18 U.S.C. § 1091); Destruction of Communication Lines (18 U.S.C.
(continued...)
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
labels “Category I Offenses” for the purposes of its report, which covers crimes that are directly
related to international terrorism. These crimes include
• Aircraft Sabotage (18 U.S.C. § 32)
• Animal Enterprise Terrorism (18 U.S.C. § 43)
• Crimes Against Internationally Protected Persons (18 U.S.C. §§ 112, 878, 1116,
l201(a)(4))
• Use of Biological, Nuclear, Chemical or Other Weapons of Mass Destruction (18
U.S.C. §§ 175, 175b, 229, 831, 2332a)
• Production, Transfer, or Possession of Variola Virus (Smallpox) (18 U.S.C.
§ 175c)
• Participation in Nuclear and WMD Threats to the United States (18 U.S.C. § 832)
• Conspiracy Within the United States to Murder, Kidnap, or Maim Persons or to
Damage Certain Property Overseas (18 U.S.C. § 956)
• Hostage Taking (18 U.S.C. § 1203)
• Terrorist Attacks Against Mass Transportation Systems (18 U.S.C. § 1993)
• Terrorist Acts Abroad Against United States Nationals (18 U.S.C. § 2332)
• Terrorism Transcending National Boundaries (18 U.S.C. § 2332b)
• Bombings of Places of Public Use, Government Facilities, Public Transportation
Systems and Infrastructure Facilities (18 U.S.C. § 2332f)
• Missile Systems designed to Destroy Aircraft (18 U.S.C. § 2332g)
• Production, Transfer, or Possession of Radiological Dispersal Devices (18 U.S.C.
§ 2332h)
• Harboring Terrorists (18 U.S.C. § 2339)
• Providing Material Support to Terrorists (18 U.S.C. § 2339A)
• Providing Material Support to Designated Terrorist Organizations (18 U.S.C.
§ 2339B)
• Prohibition Against Financing of Terrorism (18 U.S.C. § 2339C)
• Receiving Military-Type Training from an FTO (18 U.S.C. § 2339D)
• Narco-Terrorism (21 U.S.C. § 1010A)
• Sabotage of Nuclear Facilities or Fuel (42 U.S.C. § 2284)
(...continued)
§ 1362); Sea Piracy (18 U.S.C. § 1651); Wrecking Trains (18 U.S.C. § 1992); Destruction of National Defense
Materials, Premises, or Utilities (18 U.S.C. § 2155); Violence against Maritime Navigation and Maritime Fixed
Platforms (18 U.S.C. §§ 2280, 2281); Torture (18 U.S.C. § 2340A); War Crimes (18 U.S.C. § 2441); International
Traffic in Arms Regulations (22 U.S.C. § 2778); Destruction of Interstate Gas or Hazardous Liquid Pipeline Facilities
(49 U.S.C. § 60123(b)).
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
• Aircraft Piracy (49 U.S.C. § 46502)
• Violations of IEEPA (50 U.S.C. § 1705(b)) involving E.O. 12947 (Terrorists Who
Threaten to Disrupt the Middle East Peace Process); E.O. 13224 (Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism or Global Terrorism List); and E.O. 13129
(Blocking Property and Prohibiting Transactions With the Taliban)37
Military Commissions
The Constitution empowers Congress to declare war and “make rules concerning captures on land
and water,”38 to define and punish violations of the “Law of Nations,”39 and to make regulations
to govern the armed forces.40 The power of the President to convene military commissions flows
from his authority as Commander in Chief of the Armed Forces41 and his responsibility to execute
the laws of the nation.42 Under the Articles of War and subsequent statute,43 the President has at
least implicit authority to convene military commissions to try offenses against the law of war.44
The authority and objectives underlying military courts-martial and military commissions are not
coextensive.45 Rather than serving the internally directed purpose of maintaining discipline and
order of the troops, the military commission is externally directed at the enemy as a means of
waging successful war by punishing and deterring offenses against the law of war. Military
commissions have historically been used in connection with military government in cases of
occupation or martial law where ordinary civil government was impaired.
Jurisdiction of military commissions is limited to time of war and to trying offenses recognized
under the law of war or as designated by statute.46 While case law suggests that military
commissions could try U.S. citizens as enemy belligerents,47 the Military Commissions Act
permits only aliens to be tried. The United States first used military commissions to try enemy
belligerents accused of war crimes during the occupation in Mexico in 1847, and made heavy use
of them in the Civil War and in the Philippine Insurrection.48 However, prior to President Bush’s
37 Id at Annex A.
38 U.S. CONST. art. I, § 8, cl. 11.
39 Id. art. I, § 8, cl. 10.
40 Id. art. I, § 8, cl. 14.
41 Id. art. II, § 2, cl. 1.
42 Id. art. II, § 3.
43 The Articles of War were re-enacted at 10 U.S.C. § 801 et seq. as part of the UCMJ. Although there is no case law
interpreting the UCMJ as authorizing military commissions, the relevant sections of the UCMJ, which recognize the
concurrent jurisdiction of military commissions to deal with “offenders or offenses designated by statute or the law of
war,” are essentially identical to the corresponding language in the Articles of War. See 10 U.S.C. § 821.
44 Ex parte Quirin, 317 U.S. 1 (1942).
45 See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 831 (2d ed. 1920) (describing distinction between courts-
martial and military tribunals).
46 10 U.S.C. § 821. Statutory offenses for which military commissions may be convened are limited to aiding the
enemy, 10 U.S.C. § 904, and spying, 10 U.S.C. § 906. These offenses are explicitly included in the MCA.
47 See Ex parte Quirin, 317 U.S. 1 (1942).
48 For more information about the history of military commissions in the United States, see CRS Report RL31191,
Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions, by Jennifer K. Elsea.
For more information about the jurisdiction of military commissions, see CRS Report R40752, The Military
Commissions Act of 2006 (MCA): Background and Proposed Amendments, by Jennifer K. Elsea.
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Military Order of 2001 establishing military commissions for certain alien terrorism suspects, no
military commissions had been convened since the aftermath of World War II. As non-Article III
courts, military commissions have not been subject to the same constitutional requirements that
are applied in Article III courts.49 The Military Commissions Act authorizes the Secretary of
Defense to establish regulations for military commissions in accordance with its provisions. To
date, there have been six convictions of Guantanamo detainees by military commissions, four of
which were procured by plea agreement. A few commission rulings have been appealed.50
Comparison of Authorities and Procedural Rights
The following charts provide a comparison of the military commissions under the revised
Military Commissions Act and standard procedures for federal criminal court under the Federal
Rules of Criminal Procedure and the Federal Rules of Evidence. Chart 1 compares the legal
authorities for establishing both types of tribunals, the jurisdiction over persons and offenses, and
the structures of the tribunals. Chart 2, which compares procedural safeguards incorporated in
the MCA to those applicable in federal criminal cases, follows the same order and format used in
CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International
Courts, Selected Procedural Safeguards in Federal, Military, and International Courts, by
Jennifer K. Elsea, in order to facilitate comparison of the those tribunals to safeguards provided in
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 George W. 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.
49 See Ex parte Quirin, 317 U.S. at 38; Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866) (noting a servicemember
“surrenders his right to be tried by the civil courts”).
50 Information regarding the status of military commission cases, including case dockets, can be accessed via the
website of the Defense Department’s Office of Military Commissions, http://www.mc.mil/HOME.aspx.
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Chart 1. Comparison of Rules
Authority
Federal Criminal Court
Military Commissions Act of 2009
U.S. Constitution, Article III, establishing the Judiciary;
U.S. Constitution, Article I, § 8, in particular, cl. 10, “To
Article 1, § 8.
define and punish Piracies and Felonies committed on the
high Seas, and Offences against the Law of Nations;” cl.
11, “To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land
and Water”; and cl. 14 (Necessary and Proper Clause).
Procedure
Federal Criminal Court
Military Commissions Act of 2009
Most criminal offenses are defined and criminal
The Secretary of Defense may prescribe rules of
procedure established in Title 18, U.S. Code. The Federal procedure for military commissions. Such rules may not
Rules of Criminal Procedure (Fed. R. Crim. P.) are set
be inconsistent with the MCA (as amended). Procedural
forth as an appendix to Title 18.
rules for general courts-martial are to apply unless the
MCA or UCMJ provide otherwise. Consultation with the
Attorney General is required only in cases of exceptions,
which are permissible “as may be required by the unique
circumstances of the conduct of military and intelligence
operations during hostilities or by other practical need.”
10 U.S.C. § 949a .
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Jurisdiction over Persons
Federal Criminal Court
Military Commissions Act of 2009
Varies depending on criminal statute. Generally applies to Alien unprivileged enemy belligerents are subject to trial
U.S. nationals and aliens within the United States or
by military commission.
within the Special Territorial and Maritime Jurisdiction
of the United States (SMTJ) as defined in 18 U.S.C § 7.
10 U.S.C. § 948c.
Aliens are covered under some, but not all, definitions of
The term “unprivileged enemy belligerent” is defined to
the SMTJ. In particular, the areas outside the territories
mean “an individual (other than a privileged belligerent)
of the United States apply to aliens only if a U.S. national
who has engaged in hostilities against the United States
is a perpetrator or victim of the offense. Statutes may
or its coalition partners; or has purposefully and
apply to extraterritorial conduct of U.S. nationals, or
material y supported hostilities against the United States
more rarely, certain aliens.
or its coalition partners....” or an individual who was a
member of Al Qaeda at the time the offense occurred.
“Privileged belligerent” is defined in terms of the Geneva
Convention Relative to the Treatment of Prisoners of
War (GPW) Art. 4.
10 U.S.C. § 948a(6-7).
Jurisdiction over Offenses
Federal Criminal Court
Military Commissions Act of 2009
Offenses described by statute, typically defined in Title
A military commission has jurisdiction to try any offense
18, U.S. Code.
made punishable by the MCA or the law of war when
committed by an alien unlawful enemy combatant that
occurred “in the context of and associated with
hostilities,” whether before, on, or after September 11,
2001. Military commissions are expressly authorized to
determine their own jurisdiction.
10 U.S.C. § 948.
Offenses listed in 10 U.S.C. § 950t include the fol owing:
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. Conspiracy, attempts, and
solicitation to commit the defined acts are also
punishable.
10 U.S.C. § 950t.
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Composition
Federal Criminal Court
Military Commissions Act of 2009
A federal judge and twelve jurors, unless a jury trial is
A military judge and at least five members, 10 U.S.C.
waived by the defendant.
§ 948m; unless the death penalty is sought, in which case
no fewer than 12 members must be included.
Fed. R. Crim. P. 23.
10 U.S.C. § 949m(c).
In death penalty cases where twelve members are not
reasonably available because of physical conditions or
military exigencies, the convening authority may approve
a commission with as few as 9 members.
10 U.S.C. § 949m
Chart 2. Comparison of Procedural Safeguards
Presumption of Innocence
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“The principle that there is a
If the defendant fails to enter a
Before a vote is taken on the
presumption of innocence in favor of proper plea, a plea of not guilty will
findings, the military judge must
the accused is the undoubted law,
be entered.
instruct the commission members
axiomatic and elementary, and its
“that the accused must be presumed
enforcement lies at the foundation of Fed. R. Crim. P. 11(a).
to be innocent until his guilt is
the administration of our criminal
Defendant is entitled to jury
established by legal and competent
law.”
instructions explaining that guilt
evidence beyond reasonable doubt.”
Coffin v. United States, 156 U.S. 432, must be proved on the evidence
10 U.S.C. § 949l.
453 (1895).
beyond a reasonable doubt.
If an accused refuses to enter a plea
Taylor v. Kentucky, 436 U.S. 478
or pleads guilty but provides
(1978).
inconsistent testimony, or if it
Defendant is entitled to appear in
appears that he lacks proper
court without unnecessary physical
understanding of the meaning and
restraints or other indicia of guilt,
effect of the guilty plea, the
such as appearing in prison uniform,
commission must treat the plea as
that may be prejudicial to jury.
denying guilt.
See Holbrook v. Flynn, 475 U.S. 560
10 U.S.C. § 949i.
(1986).
Right to Remain Silent (Freedom from Coerced Statements)
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“No person ... shall be compelled in
Incriminating statements made by
Sections a, b, and d of Article 31,
any criminal case to be a witness
defendant under duress or without
UCMJ, is expressly made inapplicable
against himself ....”
prior Miranda warning are
to military commission trials under
inadmissible as evidence of guilt in a
the MCA, as amended. These
Amendment V.
criminal trial.
provide that no person subject to
the UCMJ may compel any person to
Miranda v. Arizona, 384 U.S. 436
incriminate himself or interrogate an
(1966).
accused without first informing him
Before a jury is allowed to hear
of his right to remain silent, and that
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
evidence of a defendant’s confession, statements obtained in violation of
the court must determine that it was the above or through other unlawful
voluntarily given.
inducement may not be received in
evidence against him in a trial by
18 U.S.C. § 3501.
court-martial.
10 U.S.C. § 948b(d).
Confessions allegedly elicited
through coercion or compulsory
self-incrimination that are otherwise
admissible are not to be excluded at
trial unless their admission violates
section 948r.
10 U.S.C. § 949a(b)(2)(C).
Statements elicited through torture
or cruel, inhuman, or degrading
treatment prohibited by 42 U.S.C.
§ 2000dd are inadmissible except
against a person accused of torture
or such treatment, regardless of
whether the statement was made
prior to the enactment of that
provision. No statement of the
accused is admissible at trial unless
the military judge finds that the
statement is reliable and sufficiently
probative; and that the statement
was made “incident to lawful
conduct during military operations at
the point of capture or during closely
related active combat engagement”
and the interests of justice would
best be served by admission of the
statement into evidence; or that the
statement was voluntarily given,
taking into consideration all relevant
circumstances, including military and
intelligence operations during
hostilities; the accused’s age,
education level, military training; and
the change in place or identity of
interrogator between that statement
and any prior questioning of the
accused.
10 U.S.C. § 948r.
Evidence derived from impermissible
interrogation methods is not barred.
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Freedom from Unreasonable Searches and Seizures
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“The right of the people to be
Evidence, including derivative
Not provided.
secure ... against unreasonable
evidence, gained through
searches and seizures, shall not be
unreasonable searches and seizures
The Secretary of Defense may
violated; and no Warrants shall issue, may be excluded in court.
provide that “evidence seized
but upon probable cause...”
outside the United States shall not
Boyd v. United States, 116 U.S. 616
be excluded from trial by military
Amendment IV.
(1886); Nardone v. United States, 308
commission on the grounds that
U.S. 338 (1938); Fed. R. Crim. P. 41.
the evidence was not seized
pursuant to a search warrant or
A search warrant issued by a
other authorization.”
magistrate on a showing of probable
cause is generally required for law
10 U.S.C. § 949a.
enforcement agents to conduct a
search of an area where the subject
has a reasonable expectation of
privacy, including searches and
seizures of telephone or other
communications and emissions of heat
and other phenomena detectable with
means other than human senses.
Katz v. United States, 389 U.S. 347
(1967).
Evidence resulting from overseas
searches of American property by
foreign officials is admissible unless
foreign police conduct shocks judicial
conscience or participation by U.S.
agents is so substantial as to render
the action that of the United States.
United States v. Barona, 56 F.3d 1087
(9th Cir. 1995).
Searches of alien property overseas
are not necessarily protected by the
Fourth Amendment.
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990).
The Fourth Amendment's warrant
requirement does not govern
searches conducted abroad by United
States agents.
In re Terrorist Bombings of U.S.
Embassies in East Africa, 552 F.3d 157
(2d. Cir. 2008).
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Effective Assistance of Counsel
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“In all criminal prosecutions, the
Defendants in criminal cases have
At least one qualifying military
accused shall enjoy the right ... to
the right to representation by an
defense counsel is to be detailed “as
have the Assistance of Counsel for
attorney at all stages of prosecution.
soon as practicable.”
his defence.”
The defendant may hire an attorney
or, if indigent, have counsel
10 U.S.C. § 948k.
Amendment VI.
appointed at the government’s
The accused is entitled to select one
expense. If two or more co-
“reasonably available” military
defendants are represented by one
counsel to represent him. The
attorney, the court must inquire as
accused is not entitled to have more
to whether a conflict of interest
than one military counsel, but
exists.
“associate defense counsel” may be
Fed. R. Crim. P. 44.
authorized pursuant to regulations.
Conversations between attorneys
10 U.S.C. §§ 948c, 948k.
and clients are privileged.
The accused may also hire a civilian
Fed. R. Evid. 501.
attorney who
Procedures for ensuring adequate
1. is a U.S. citizen,
representation of defendants are
2. is admitted to the bar in any state,
outlined at 18 U.S.C. §§ 3005 (capital
district, or possession,
cases) and 3006A.
3. has never been disciplined,
4. has a SECRET clearance (or
higher, if necessary for a particular
case), and
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.
In capital cases, the accused is
entitled to be represented, “to the
greatest extent practicable, by at
least one additional counsel who is
learned in applicable law,” who may
be a civilian.
10 U.S.C. § 949a.
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Right to Indictment and Presentment
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“No person shal be held to answer
Where the accused is in danger of
UCMJ Article 32, which provides for
for a capital, or otherwise infamous
being subjected to an infamous
impartial pretrial hearings prior to
crime, unless on a presentment or
punishment if convicted, he has the
referral of a matter to general court-
indictment of a Grand Jury, except in right to insist that he shall not be
martial, is expressly made
cases arising in the land or naval
tried except on the accusation of a
inapplicable.
forces, or in the Militia, when in
grand jury.
actual service in time of War or
10 U.S.C. § 948b(d)(1)(C).
public danger ....”
Ex parte Wilson, 114 U.S. 417
(1885); Fed. R. Crim. P. 7.
Charges and specifications against an
Amendment V.
accused are to be signed by a person
Jurors must be selected from a fair
subject to UCMJ swearing under
cross section of the community;
oath that the signer has “personal
otherwise, an accused can challenge
knowledge of, or reason to believe,
the indictment.
the matters set forth therein,” and
that they are “true in fact to the best
28 U.S.C. §§ 1861 et seq.
of his knowledge and belief.” The
Once an indictment is given, its
accused is to be informed of the
scope may not be increased.
charges and specifications against
him as soon as practicable after
Ex parte Bain, 121 U.S. 1 (1887).
charges are sworn.
(Amendments to an indictment must
10 U.S.C. § 948q.
undergo further grand jury process.)
Right to Written Statement of Charges
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“In all criminal prosecutions, the
Defendant is entitled to be informed
The trial counsel assigned is
accused shall enjoy the right ... to be
of the nature of the charge with
responsible for serving counsel a
informed of the nature and cause of
sufficiently reasonable certainty to
copy of the charges upon the
the accusation; ...”
allow for preparation of defense.
accused, in English and, if
appropriate, in another language that
Amendment VI.
Cook v. United States, 138 U.S. 157
the accused understands, “sufficiently
(1891).
in advance of trial to prepare a
defense.”
10 U.S.C. § 948s.
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Right to Be Present at Trial
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
The Confrontation Clause of
The language, history, and logic of
The accused has the right to be
Amendment VI guarantees the
Rule 43 support a straightforward
present at all sessions of the military
accused’s right to be present in the
interpretation that prohibits the trial
commission except deliberation or
courtroom at every stage of his trial.
in absentia of a defendant who is not
voting, unless exclusion of the
present at the beginning of trial.
accused is permitted under § 949d.
Illinois v. Allen, 397 U.S. 337 (1970).
Crosby v. United States, 506 U.S.
10 U.S.C. § 949a(b)(1)(B).
255, 262 (1993); Fed. R. Crim. P. 43.
The accused may be excluded from
When defendant knowingly absents
attending portions of the proceeding
himself from court during trial, court
if the military judge determines that
may “proceed with trial in like
the accused persists in disruptive or
manner and with like effect as if he
dangerous conduct.
were present.”
10 U.S.C. § 949d(e).
Diaz v. United States, 223 U.S. 442,
455 (1912).
Prohibition Against Ex Post Facto Crimes
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“No ... ex post facto law shall be
Congress may not pass a law
The MCA expressly provides
passed.”
punishing conduct that was not a
jurisdiction over the defined crimes,
crime when perpetrated, increasing
whether committed prior to, on or
Art. I, § 9, cl. 3.
the possible sentence for a crime, or
after September 11, 2001.
reducing the government’s
evidentiary burden.
10 U.S.C. § 948d.
Calder v. Bull, 3 Dall. (3 U.S.) 386
The act declares that, because it
(1798); Ex Parte Garland, 4 Wal (71
codifies offenses that “have
U.S.) 1867.
traditional y been triable under the
law of war or otherwise triable by
military commission,” the subchapter
defining offenses “does not preclude
trial for offenses that occurred
before the date of the enactment of
this subchapter, as so amended.”
10 U.S.C. § 950p.
Crimes punishable by military
commissions under the new chapter
are contained in subchapter VII. It
includes the crime of conspiracy,
which a plurality of the Supreme
Court in Hamdan v. Rumsfeld viewed
as invalid as a charge of war crimes.
548 U.S. 557 (2006).
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Protection Against Double Jeopardy
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“... nor shall any person be subject
Jeopardy attaches once the jury is
“No person may, without his
for the same offence to be twice put
sworn or where there is no jury,
consent, be tried by a military
in jeopardy of life or limb; ...”
when the first evidence is presented.
commission [under the MCA] a
If the trial is terminated after
second time for the same offense.”
Amendment V.
jeopardy has attached, a second trial
Jeopardy attaches when a guilty
Subject to “dual sovereign” doctrine,
may be barred in a court under the
finding becomes final after review of
that is, federal and state courts may
same sovereign, particularly where it
the case has been completed.
prosecute an individual for the same
is prosecutorial conduct that brings
10 U.S.C. § 949h.
conduct without violating the clause.
about the termination of the trial.
Illinois v. Somerville, 410 U.S. 458
The United States may not appeal an
(1973).
order or ruling that amounts to a
finding of not guilty.
10 U.S.C. § 950d(b).
The convening authority may not
revise findings or order a rehearing
in any case to reconsider a finding of
not guilty of any specification or a
ruling which amounts to a finding of
not guilty, or reconsider a finding of
not guilty of any charge, unless there
has been a finding of guilty under a
specification laid under that charge,
which sufficiently alleges a violation.
The convening authority may not
increase the severity of the sentence
unless the sentence prescribed for
the offense is mandatory.
10 U.S.C. § 950b(d).
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Speedy and Public Trial
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“In all criminal prosecutions, the
Trial is to commence within seventy
There is no right to a speedy trial.
accused shall enjoy the right to a
days of indictment or original
Article 10, UCMJ, 10 U.S.C. § 810,
speedy and public trial, ....”
appearance before court.
requiring immediate steps to inform
arrested person of the specific
Amendment VI.
18 U.S.C. § 3161.
wrong of which he is accused and to
Closure of the courtroom during
try him or to dismiss the charges and
trial proceedings is justified only if 1)
release him, is expressly made
the proponent of closure advances
inapplicable to military commissions.
an overriding interest likely to be
10 U.S.C. § 948b(d).
prejudiced; 2) the closure is no
broader than necessary; 3) the trial
The military judge may close all or
court considers reasonable
part of a trial to the public only after
alternatives to closure; and 4) the
making a determination that such
trial court makes findings adequate
closure is necessary to protect
to support closure.
information, the disclosure of which
would be harmful to national
See Wal er v. Georgia, 467 U.S. 39,
security interests or to the physical
48 (1984).
safety of any participant.
10 U.S.C. § 949d(c).
Burden and Standard of Proof
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
Due Process requires the
Defendant is entitled to jury
Commission members are to be
prosecution to prove the defendant
instructions clarifying that the
instructed that the accused is
guilty of each element of a crime
prosecution has the burden of
presumed to be innocent until his
beyond a reasonable doubt.
presenting evidence sufficient to
“guilt is established by legal and
prove guilt beyond a reasonable
competent evidence beyond
In re Winship, 397 U.S. 358 (1970).
doubt.
reasonable doubt”; that any
reasonable doubt as to the guilt of
Cool v. United States, 409 U.S. 100
the accused must result in acquittal;
(1978).
that reasonable doubt as to the
Jury verdicts must be unanimous.
degree of guilt must be resolved in
favor of the lower degree as to
Fed. R. Crim. P. 31.
which there is no reasonable 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 (which must be
unanimous) and cases involving
confinement for more than ten
years.
10 U.S.C. § 949m.
The Secretary of Defense must
prescribe that the military judge is to
exclude any evidence, the probative
value of which is substantially
outweighed by the danger of unfair
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
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.
Privilege Against Self-Incrimination (Freedom from Compelled Testimony)
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“No person ... shall be compelled in
Defendant may not be compel ed to
“No person shal be required to
any criminal case to be a witness
testify. Jury may not be instructed
testify against himself or herself at a
against himself...”
that guilt may be inferred from the
proceeding of a military commission
defendant’s refusal to testify.
under this chapter.”
Amendment V.
Griffin v. California, 380 U.S. 609
10 U.S.C. § 948r.
(1965).
No person subject to the UCMJ may
Witnesses may not be compelled to
compel any person to make a
give testimony that may be
statement or produce evidence
incriminating unless given immunity
before any military tribunal if the
for that testimony.
statement or evidence is not
material to the issue and may tend
18 U.S.C. § 6002.
to degrade him.
10 U.S.C. § 831(c).
Adverse inferences drawn from a
failure to testify are not expressly
prohibited; however, members are
to be instructed that “the accused
must be presumed to be innocent
until his guilt is established by legal
and competent evidence.”
10 U.S.C. § 949l.
There does not appear to be a
provision for immunity of witnesses,
although 18 U.S.C. § 6002 may apply
to military commissions.
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Right to Examine or Have Examined Adverse Witnesses (Hearsay Prohibition,
Classified Information)
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“In all criminal prosecutions, the
Rules of Evidence prohibit generally
“Defense counsel may cross-
accused shall enjoy the right ... to be
the introduction at trial of
examine each witness for the
confronted with the witnesses
statements made out of court to
prosecution who testifies before a
against him; ....”
prove the truth of the matter stated
military commission under this
unless the declarant is unavailable for
chapter.”
Amendment VI.
cross-examination at trial (hearsay
rule).
10 U.S.C. § 949c.
Fed. R. Evid. 801 et seq.
The Secretary of Defense is
permitted to provide that hearsay
The government is required to
evidence that would not be
disclose to defendant any relevant
admissible at a general court-martial
evidence in its possession or that
is admissible if adequate notice is
may become known through due
given and the military judge
diligence.
determines that the statement is
reliable and is offered as evidence of
Fed. R. Crim. P. 16.
a material fact, that direct testimony
The use of classified information is
from the witness is not available or
governed by the Classified
would have an adverse impact on
Information Procedures Act (CIPA,
military or intelligence operations,
codified at 18 U.S.C. App. 3).
and that the general purposes of the
rules of evidence and the interests of
CIPA recognizes the government’s
justice will best be served by
entitlement to prevent the disclosure admission of the statement into
of classified information, even where
evidence. In determining reliability ,
it is material to the defense.
the military judge may be obligated
However, in such cases the court is
to consider the degree to which the
empowered to dismiss the
statement is corroborated, the
indictment against the defendant or
indicia of reliability within the
impose other sanctions as may be
statement itself, and whether the will
appropriate. The United States may
of the declarant was overborne,
ask the court to permit the
substitution of a statement admitting
10 U.S.C. § 949a(b)(3)(D) .
relevant facts that the specific
The burden of persuasion to
classified information would tend to
demonstrate unreliability or lack of
prove or of a summary of the
probative value appears to be on the
specific classified information. The
profferer of the evidence. (Language
court is required to grant the
providing otherwise was repealed).
government’s motion if it finds that
the statement or summary will
The protection of classified
provide the defendant with
information is governed by a new
substantially the same ability to make subchapter V, 10 U.S.C. §§ 949p-1 –
his defense as would disclosure of
949p-7. Subchapter V provides that
the specific classified information.
the government cannot be
compelled to disclose classified
information to anyone not
authorized to receive it. If the
government claims a privilege, the
military judge may not authorize the
discovery of or access to the
classified information unless he
determines the evidence is
noncumulative, relevant, and helpful
to a legally cognizable defense,
rebuttal of the prosecution’s case, or
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
to sentencing. If the military judge
determines disclosure or access is
necessary, the military judge must
grant the government’s request to
delete or withhold specified items of
classified information; to substitute a
summary for classified information;
or to substitute a statement
admitting relevant facts that the
classified information or material
would tend to prove, so long as the
alternative procedure would provide
the accused with substantial y the
same ability to make a defense. If the
prosecution makes a motion for
protective measures in camera, the
accused has no opportunity to
request a reconsideration.
Right to Compulsory Process to Obtain Witnesses (Discovery)
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“In all criminal prosecutions, the
Defendants have the right to
Defense counsel is to be afforded a
accused shall enjoy the right ... to
subpoena witnesses to testify in their reasonable opportunity to obtain
have compulsory process for
defense. The court may punish
witnesses and other evidence,
obtaining witnesses in his favor, ....”
witnesses who fail to appear.
including evidence in the possession
of the United States, according to
Amendment VI.
Fed. R. Crim. P. 17.
DOD regulations. The military judge
The prosecution is required to
is authorized to compel witnesses
disclose defendant’s statements,
under U.S. jurisdiction to appear.
whether written or oral, that are
The trial counsel is obligated to
material to the case. The
disclose exculpatory evidence of
government must also provide
which he is aware to the defense,
results or reports of any physical or
along with mitigating evidence,
mental examination of the defendant. evidence that reasonably tends to
impeach the credibility of a
Upon a defendant’s request, the
government witness who is to be
government must permit the
called at trial. The trial counsel is
defendant to inspect and make
deemed to be aware of information
copies or photos of tangible objects,
that is known or reasonably should
buildings or places, within the
be known to any government
government’s control if
officials who participated in the
(i) the item is material to preparing
investigation and prosecution of the
the defense;
case
(ii) the government intends to use
10 U.S.C. § 949j.
the item in its case-in-chief at trial;
or
(ii ) the item was obtained from or
belongs to the defendant.
At the defendant’s request, the
government must provide a written
summary of any expert testimony
that the government intends to use
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
during its case-in-chief at trial.
Fed. R. Crim. P. 16
The government must also give
notice of any witnesses it intends to
depose, general y permitting the
defendant to attend the deposition.
Fed. R. Crim. P. 15
Right to Trial by Impartial Judge
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“The Judicial Power of the United
The independence of the judiciary
Military judges must take an oath to
States, shall be vested in one
from the other branches was
perform their duties faithfully.
supreme Court, and in ... inferior
established to ensure trials are
courts .... The Judges ... shall hold
decided impartially, without the
10 U.S.C. § 949g.
their Offices during good Behaviour,
“potential domination by other
The convening authority is
and shall ... receive ... a
branches of government.”
prohibited from preparing or
Compensation, which shall not be
reviewing any report concerning the
diminished during their Continuance
United States v. Will, 449 U.S. 200,
effectiveness, fitness, or efficiency of
in Office.”
217-18 (1980).
a military judge.
Article III § 1.
Judges with a pecuniary interest in
the outcome of a case or other
10 U.S.C. § 948j(f).
conflicts of interest are disqualified
A military judge may not be assigned
and must recuse themselves.
to a case in which he is the accuser,
28 U.S.C. § 455.
an investigator, a witness, or a
counsel.
10 U.S.C. § 948j(c).
The military judge may not consult
with 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.
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Right to Trial by Impartial Jury
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“The Trial of all Crimes, except in
The pool from which juries are
Military commission members must
Cases of Impeachment, shall be by
drawn must represent a fair cross
take an oath to perform their duties
Jury; ....”
section of the community.
faithfully.
Art III § 2 cl. 3.
Taylor v. Louisiana, 419 U.S. 522
10 U.S.C. § 949g.
(1975).
“In all criminal prosecutions, the
The accused may make one
accused shall enjoy the right to a ...
There must further be measures to
peremptory challenge, and may
trial, by an impartial jury of the state
ensure individual jurors selected are
challenge other members for cause.
....”
not biased (i.e., the voir dire process). 10 U.S.C. § 949f.
Amendment VI.
Lewis v. United States, 146 U.S. 370
(1892); see Fed. R. Crim. P. 24
No convening authority may
(peremptory challenges).
censure, reprimand, or admonish the
commission or any member with
The trial must be conducted in a
respect to the findings or sentence
manner designed to avoid exposure
or the exercise of any other
of the jury to prejudicial material or
functions in the conduct of the
undue influence. If the locality of the
proceedings. No person may
trial has been so saturated with
attempt to coerce or, by any
publicity about a case that it is
unauthorized means, influence the
impossible to assure jurors will not
action of a commission or any
be affected by prejudice, the
member thereof, in reaching the
defendant is entitled to a change of
findings or sentence in any case.
venue.
Military commission duties may not
be considered in the preparation of
Irvin v. Dowd, 366 U.S. 717 (1961).
an effectiveness report or any similar
document with potential impact on
career advancement.
10 U.S.C. § 949b.
Right to Appeal to Independent Reviewing Authority
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“The Privilege of the Writ of Habeas
Originally, the writ of habeas corpus
The accused may submit matters for
Corpus shal not be suspended,
permitted col ateral attack upon a
consideration by the convening
unless when in Cases of Rebellion or
prisoner’s conviction only if the
authority with respect to the
Invasion the public Safety may
sentencing court lacked subject
authenticated findings or sentence of
require it”
matter jurisdiction. It later evolved
the military commission. The
into an avenue for the challenge of
convening authority must review
Article I § 9 cl. 2.
federal and state convictions on
timely submissions prior to taking
There is no express requirement for
other due process grounds, to
action.
appellate review. Appellate courts
determine whether a prisoner’s
10 U.S.C. § 950b.
may exercise jurisdiction only where
detention is “contrary to the
Congress has authorized it.
Constitution or laws or treaties of
The accused may appeal a final
the United States.” 28 U.S.C. §§
decision of the military commission
E.g. Liberty Mut. Ins. Co. v. Wetzel,
2241 et seq.
with respect to any properly raised
424 U.S. 737 (1976).
Federal appellate courts may review
issue to the Court of Military
the final decisions of district courts
Commission Review, a body
as well as certain interlocutory
composed of appellate military
orders.
judges who meet the same
qualifications as military judges or
28 U.S.C. §§ 1291-92.
comparable qualifications for civilian
judges.
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Comparison of Military Commission Trials and Trials in Federal Criminal Court
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
10 U.S.C. § 950f.
Once these appeals are exhausted,
the accused may appeal the final
decision to the United States Court
of Appeals for the District of
Columbia Circuit, with respect to
the findings and sentence as
approved by the convening authority
and as affirmed or set aside as
incorrect in law by the United States
Court of Military Commission
Review. The appellate court may
take action only with respect to
matters of law, including the
sufficiency of the evidence to
support the verdict. D.C. Cir.
appellate decisions may be reviewed
by the Supreme Court under writ of
certiorari.
10 U.S.C. § 950g.
Other review by a civilian court,
including review on petition of
habeas corpus, is no longer expressly
prohibited.
Protection Against Excessive Penalties
Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
“Excessive bail shal not be required,
The death penalty is not per se
Military commissions may adjudge
nor excessive fines imposed, nor
unconstitutional, but its
“any punishment not forbidden by
cruel and unusual punishments
discriminatory and arbitrary
[the MCA], including the penalty of
inflicted.”
imposition may be, and the death
death when specifically
penalty may not be automatic.
authorized....”
Amendment VIII.
See Gregg v. Georgia, 428 U.S. 153
10 U.S.C. § 948d.
(1976); 18 U.S.C.§ 3592 (mitigating
/aggravating circumstances).
A vote of two-thirds of the members
present is required for sentences of
When the death penalty may be
up to 10 years. Longer sentences
imposed, the defendant shal be
require the concurrence of three-
provided a list of potential jurors and fourths of the members present. The
witnesses, unless the court finds that
death penalty must be approved
such action might jeopardize the life
unanimously on a unanimous guilty
or safety of any person.
verdict or a guilty plea which was
accepted and not withdrawn prior to
18 U.S.C. § 3432.
the announcement of the sentence.a
A special hearing is held to
Where the death penalty is sought, a
determine whether the death
panel of 12 members is required
sentence is warranted.
(unless not “reasonably available”).
The death penalty must be expressly
18 U.S.C. § 3593.
authorized for the offense, and the
In capital cases, the accused is
charges must have expressly sought
entitled to assistance of at least 2
the penalty of death.
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Military Commissions Act of
U.S. Constitution
Federal Criminal Court
2009
counsel, one of whom has expertise
10 U.S.C. § 949m.
in death penalty cases. Counsel in
such cases have free access to the
An accused who is sentenced to
accused at all reasonable hours. The
death may waive his appeal, but may
defendant is allowed to make any
not withdraw an appeal.
proof in his defense that he can
10 U.S.C. § 950c.
produce by lawful witnesses, and is
entitled to have the same process to
The death sentence may not be
compel witnesses to appear as is
executed until the commission
ordinarily granted to the
proceedings have been final y
prosecution.
adjudged lawful and the time for
filing a writ has expired or the writ
18 U.S.C. § 3005
has been denied. The President must
The court must stay a death
approve the sentence.
sentence if the defendant appeals the 10 U.S.C. § 950i.
conviction or sentence.
In capital cases, the accused is
Fed. R. Crim. P. 38.
entitled to assistance of counsel with
expertise in death penalty cases,
which may include civilian counsel
paid for by the government.
10 U.S.C. § 949a.
a. The National Defense Authorization Act for FY2012 amended the MCA to expressly permit guilty pleas in
capital cases, so long as military commission panel members vote unanimously to approve the sentence. P.L.
112-81, § 1030. As previously written, the MCA only clearly permitted the death penalty in cases where
commission members unanimously voted to convict and concurred in the sentence of death—a
requirement that many had interpreted as precluding the imposition of the death penalty in cases where the
accused has pled guilty, as there would have been no vote by commission members as to the defendant's
guilt.
Author Contact Information
Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
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