The Military Commissions Act of 2009
(MCA 2009): Overview and Legal Issues
Jennifer K. Elsea
Legislative Attorney
March 7, 2014
Congressional Research Service
7-5700
www.crs.gov
R41163
The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Summary
On November 13, 2001, President Bush issued a Military Order (M.O.) pertaining to the
detention, treatment, and trial of certain non-citizens in the war against terrorism. Military
commissions pursuant to the M.O. began in November 2004 against four persons declared
eligible for trial, but the Supreme Court in Hamdan v. Rumsfeld invalidated the military
commissions as improper under 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. Military commissions proceedings were reinstated and resulted in
three convictions under the Bush Administration.
Upon taking office in 2009, President Obama temporarily halted military commissions to review
their procedures as well as the detention program at Guantánamo Bay in general, pledging to
close the prison facilities there by January 2010, a deadline that passed unmet. 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. Congress enacted the Military
Commissions Act of 2009 (MCA 2009) as part of the Department of Defense Authorization Act
(NDAA) for FY2010, P.L. 111-84, to provide some reforms the Administration supported and to
make other amendments to the Military Commissions Act, as described in this report. The plan to
transfer five “high value detainees” to New York for trial in federal court, announced in
November 2009, was halted due to resistance from Congress and some New York officials.
Military commissions resumed under the new statute, resulting in an additional five convictions,
although two of the previous convictions have been reversed on appeal. The government has been
granted a rehearing en banc at the U.S. Court of Appeals for the D.C. Circuit for one case.
This report provides a background and analysis comparing military commissions as envisioned
under the revised MCA to those established by the MCA 2006. After reviewing the history of the
implementation of military commissions in the armed conflict against Al Qaeda and associated
forces, the report provides an overview of the procedural safeguards provided in the MCA.
Finally, the report provides two charts comparing the MCA as amended by the MCA 2009 to the
original MCA enacted in 2006 and to general courts-martial. The first chart describes the
composition and powers of the military tribunals, as well as their jurisdiction. The second chart,
which compares procedural safeguards in courts-martial to the MCA as enacted and as amended,
follows the same order and format used in CRS Report RL31262, Selected Procedural
Safeguards in Federal, Military, and International Courts, as well as CRS Report R40932,
Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court, both
by Jennifer K. Elsea, to facilitate comparison with safeguards provided in federal court and
international criminal tribunals.
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Contents
Introduction ...................................................................................................................................... 1
Military Commissions ..................................................................................................................... 6
Jurisdiction ................................................................................................................................ 8
Jurisdiction over the Offender ............................................................................................. 8
Subject Matter Jurisdiction ................................................................................................ 11
Temporal and Spatial Jurisdiction ..................................................................................... 16
Composition and Powers ......................................................................................................... 17
Procedures Accorded the Accused ........................................................................................... 20
Open Hearing .................................................................................................................... 20
Right to Be Present ............................................................................................................ 22
Right to Counsel ................................................................................................................ 22
Evidentiary Matters ................................................................................................................. 24
Discovery .......................................................................................................................... 25
Admissibility of Evidence ................................................................................................. 26
Coerced Statements ........................................................................................................... 27
Hearsay .............................................................................................................................. 29
Classified Evidence ........................................................................................................... 30
Sentencing ............................................................................................................................... 32
Post-Trial Procedure ................................................................................................................ 33
Review and Appeal............................................................................................................ 33
Protection Against Double Jeopardy ................................................................................. 35
Chart 1. Comparison of Military Commission Rules .................................................................... 37
Authority.................................................................................................................................. 37
Procedure ................................................................................................................................. 37
Jurisdiction over Persons ......................................................................................................... 38
Jurisdiction over Offenses ....................................................................................................... 39
Composition ............................................................................................................................ 39
Chart 2. Comparison of Procedural Safeguards ............................................................................. 40
Presumption of Innocence ....................................................................................................... 40
Right to Remain Silent (Freedom from Coerced Statements) ................................................. 40
Freedom from Unreasonable Searches and Seizures ............................................................... 42
Effective Assistance of Counsel .............................................................................................. 43
Right to Indictment and Presentment ...................................................................................... 44
Right to Written Statement of Charges .................................................................................... 44
Right to Be Present at Trial ..................................................................................................... 44
Prohibition Against Ex Post Facto Crimes .............................................................................. 45
Protection Against Double Jeopardy ....................................................................................... 46
Speedy and Public Trial ........................................................................................................... 47
Burden and Standard of Proof ................................................................................................. 48
Privilege Against Self-Incrimination (Freedom from Compelled Testimony) ........................ 49
Right to Examine or Have Examined Adverse Witnesses (Hearsay and Classified
Evidence) .............................................................................................................................. 49
Right to Compulsory Process to Obtain Witnesses and Other Evidence (Discovery) ............. 51
Right to Trial by Impartial Judge ............................................................................................. 52
Right to Trial by Impartial Jury ............................................................................................... 53
Right to Appeal to Independent Reviewing Authority ............................................................ 53
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Protection Against Excessive Penalties ................................................................................... 55
Tables
Table 1. Military Commissions: Completed Cases at Trial Level ................................................... 5
Contacts
Author Contact Information........................................................................................................... 55
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Introduction
The use of military commissions to try suspected terrorists has been the focus of intense debate
(as well as significant litigation) since President Bush in November 2001 issued his original
Military Order (M.O.) authorizing such trials.1 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.2 In response, Congress enacted the Detainee Treatment Act of 2005 (DTA).3 The DTA did
not authorize military commissions, but amended Title 28, U.S. Code 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, after finding that Congress’s efforts to strip it of jurisdiction did not apply to
a case already pending before the Court, Hamdan v. Rumsfeld,4 invalidated the military
commission system established by presidential order. The Court held 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).5 In response, Congress promptly passed the Military
Commissions Act of 2006 (MCA 2006)6 to authorize military commissions and establish
procedural rules that were modeled after, but departed from in some significant ways, the UCMJ.
The MCA 2006 also amended the Detainee Treatment Act in order to strip the judiciary of habeas
1 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.”). 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. See Press Release, Department of Defense, President
Determines Enemy Combatants Subject to His Military Order (July 3, 2003), available at http://www.defense.gov/
releases/release.aspx?releaseid=5511. 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 a
thttp://www.defenselink.mil/releases/release.aspx?releaseid=7525. 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.defense.gov/releases/release.aspx?releaseid=9052.
2 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, NY 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 R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by
Jennifer K. Elsea and Michael John Garcia.
3 Title 10 of P.L. 109-148 and Title 14 of P.L. 109-163. The two versions of the Detainee Treatment Act (DTA) were
identical as enacted, but subsequent amendments have resulted in some differences in the text.
4 Hamdan v. Rumsfeld, 548 U.S. 557 (2006), rev’g 415 F.3d 33 (D.C. Cir. 2005).
5 10 U.S.C. §801 et seq. Military commissions were said to be authorized pursuant to 10 U.S.C. §§821 and 836.
6 P.L. 109-366, 120 Stat. 2600, codified at chapter 47A of Title 10, U.S. Code (2006).
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jurisdiction in all cases brought by detainees, including pending cases,7 but the Supreme Court
held that provision to be an unconstitutional suspension of the Writ of Habeas Corpus.8
President Bush reconstituted the military commissions under the MCA 2006 by issuing Executive
Order 13425.9 The Department of Defense (DOD) issued regulations for the conduct of military
commissions pursuant to the MCA 200610 and restarted the military commission proceedings,
which resulted in three convictions under the Bush Administration. One detainee, David Matthew
Hicks of Australia, was convicted of material support to terrorism pursuant to a plea agreement in
2007.11 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.12
Both men are now free from detention. 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.”13 He refused representation and boycotted most of his trial, and was subsequently
sentenced to life imprisonment. The latter two convictions were reversed on appeal by the U.S.
Court of Appeals for the D.C. Circuit.14 The government sought and was granted a rehearing en
banc in the Bahlul case to appeal the decisions.
No challenge to military commissions under the MCA 2006 reached the Supreme Court.
President Obama halted the proceedings upon taking office in January 2009 in order to review
whether to continue their use. The President issued an Executive Order requiring that the
Guantánamo detention facility be closed no later than a year from the date of the Order.15 The
Order required specified officials to review all Guantánamo 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.16 The Secretary of Defense
was also required to take steps to ensure that all proceedings before military commissions and the
United States Court of Military Commission Review were halted, although some pretrial
proceedings continued to take place. One case was moved to a federal district court.17
7 P.L. 109-366 §7.
8 Boumediene v. Bush, 533 U.S. 723 (2008). For an analysis of the case, see CRS Report R41156, Judicial Activity
Concerning Enemy Combatant Detainees: Major Court Rulings, by Jennifer K. Elsea and Michael John Garcia.
9 Exec. Ord. No. 13425, 72 Fed. Reg. 7737 (February 14, 2007).
10 Department of Defense, The Manual for Military Commissions [“M.M.C. 2007”], January 18, 2007, available at
http://www.defenselink.mil/news/MANUAL%20FOR%20MILITARY%20COMMISSIONS%202007%20signed.pdf.
11 Press release, Department of Defense, Detainee Convicted of Terrorism Charge at Guantánamo Trial” (March 30,
2007), available at 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.
12 Press release, Department of Defense, Detainee Transfer Announced (November 28, 2008), available at
http://www.defenselink.mil/releases/release.aspx?releaseid=12372.
13 Press release, Department of Defense, Detainee Sentenced To Life In Prison (November 3, 2008), available at
http://www.defenselink.mil/releases/release.aspx?releaseid=12331.
14 Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012); Al Bahlul v. United States, 2013 WL 297726 (D.C. Cir.
January 25, 2013) (per curiam).
15 Exec. Ord. 13492, Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure
of Detention Facilities, 74 Fed. Reg. 4,897 (January 22, 2009).
16 Id. at §4.
17 Press Release, Department of Justice, Ahmed Ghailani Transferred from Guantánamo Bay to New York for
Prosecution on Terror Charges (June 9, 2009), available at http://www.justice.gov/opa/pr/2009/June/09-ag-563.html.
(continued...)
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
In May 2009, the Obama Administration announced that it was considering restarting the military
commission system with some changes to the procedural rules.18 DOD informed Congress about
modifications to the Manual for Military Commissions, to take effect July 14, 2009.19 The Senate
passed the Military Commissions Act of 2009 (MCA 2009) as part of the Department of Defense
Authorization Act (NDAA) for FY2010, S. 1391, to provide some reforms the Administration
supported and to make other amendments to the Military Commissions Act, as described below.
The bill that emerged from conference (H.R. 2647) contained some, but not all, of the proposals
submitted by the Obama Administration, and was enacted October 28, 2009, P.L. 111-84.
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.20 The disposition of each case was
assigned to a team composed of Department of Justice (DOJ) and Department of Defense (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 Guantánamo detainees.
This protocol identified 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
the 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.”
On November 13, 2009, Attorney General Holder announced his decision to transfer the five
“9/11 conspirators,” who include 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.21 Five other detainees to be tried by military
commission included Omar Khadr, a Canadian citizen captured as a teenager and charged before
(...continued)
Ghailani was ultimately convicted and sentenced to life in prison. See Benjamin Weiser, Ex-Detainee Gets Life
Sentence in Embassy Blasts, N.Y. TIMES, January 26, 2011, at A18. For more information, see CRS Report R41156,
Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by Jennifer K. Elsea and Michael
John Garcia.
18 Peter Finn, Obama Set to Revive Military Commissions, WASH. POST, May 9, 2009.
19 Letter from Robert M. Gates, Secretary of Defense, to Senator Carl Levin, May 15, 2009.
20 Memorandum from the Detention Policy Task Force to the Attorney General and the Secretary of Defense, July 20,
2009, http://www.scotusblog.com/wp-content/uploads/2009/07/law-of-war-prosecution-prelim-report-7-20-09.pdf.
21 Press Release, U.S. Department of Justice, “Departments of Justice and Defense Announce Forum Decisions for Ten
Guantánamo Detainees,” November 13, 2009, available at http://www.justice.gov/opa/pr/2009/November/09-ag-
1224.html.
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
a military commission for allegedly throwing a hand grenade that killed a U.S. medic in
Afghanistan;22 Abd al-Rahim al-Nashiri, whose military commission charges related to the
October 2000 attack on the USS Cole were previously withdrawn in February 2009; Ahmed
Mohammed Ahmed Haza al Darbi, accused of participating in an Al Qaeda plot to blow up oil
tankers in the Straits of Hormuz,23 and two other detainees about whom no further information
was given.24
As the deadline for closing the detention facility at Guantánamo passed unmet, the Obama
Administration reportedly completed its assessment, determining that about 50 of the detainees
held there would continue to be held without trial, that around 40 detainees would be prosecuted
in military commission or federal court, and that the remaining 110 detainees would be released
once a suitable country has agreed to take each of them.25 However, the transfer of 30 detainees
of Yemeni nationality was stymied because an Al Qaeda affiliate in Yemen is suspected to have
been behind attempt to blow up a civilian airliner on Christmas Day 2009.26
22 Khadr pleaded guilty in 2010 and was sentenced to 40 years in prison. He will serve eight years pursuant to his plea
agreement, and has been transferred to Canada to serve the remaining portion of his sentence.
23 Al Darbi pleaded guilty in February 2014 under an agreement that provides a sentence of between 13 and 15 years.
See Charlie Savage, Guantánamo Detainee Pleads Guilty in 2002 Attack on Tanker Off Yemen, NY TIMES, February
20, 2014.
24 One of these may have been Majid Shoukat Khan, who has pleaded guilty to conspiracy and other crimes in
connection with the August 2003 bombing of the J.W. Marriot hotel in Indonesia and an attempted assassination of
former Pakistani President Pervez Musharraf. The other may have been Noor Uthman Muhammed, who pleaded guilty
to conspiracy and providing material support for terrorism in connection with service at the Khalden terrorist training
camp in Afghanistan. He was sentenced in February 2011 to 14 years’ imprisonment, but his plea agreement provided
for only 34 months.
25 See Charlie Savage, Detainees Will Still Be Held, but Not Tried, Official Says, NY TIMES, January 22, 2010.
26 Id.
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Table 1. Military Commissions: Completed Cases at Trial Level
Year of
Accused
Verdict
Result
Charges
Post-military commission developments
David Hicks
2007
guilty plea
material support
transferred to Australia to serve remainder of
for terrorism
unsuspended portion (nine months) of seven-
year sentence; has submitted new appeal to
Court of Military Commissions Review
(CMCR)
Salim Hamdan
2009
guilty finding
material support
overturned on appeal by the U.S. Court of
for terrorism,
Appeals for the D.C. Circuit
acquitted on
conspiracy
charge
Ali al Bahlul
2009
guilty finding
conspiracy and
appeal to be heard en banc at the U.S. Court
providing
of Appeals for the D.C. Circuit
material support
for terrorism
Ibrahim al-Qosi 2010
guilty plea
conspiracy and
transferred to Sudan after serving two-year
providing
sentence with 12 years suspended; appellate
material support
counsel is seeking to appeal to CMCR
for terrorism
Omar Khadr
2010
guilty plea
murder and
transferred to Canada to serve remainder of
attempted
eight-year sentence; has submitted new
murder in
appeal to CMCR
violation of the
law of war,
providing
material support
for terrorism,
conspiracy, and
spying
Noor Uthman
2011 guilty
plea providing
34 months’ confinement pursuant to plea
Muhammed
material support
agreement, transferred to Sudan December
for terrorism and 2013
conspiracy
Majid Shoukat
2012 guilty
plea murder
and sentencing is delayed for four years, limited by
Khan
attempted
plea agreement to 25 years’ confinement
murder in
violation of the
law of war,
providing
material support
for terrorism,
spying and
conspiracy
Ahmed
2014 guilty
plea conspiracy, sentencing is delayed for three years and six
Mohammed
attacking civilian
months, limited by plea agreement to 15
Ahmed Haza al
objects,
years’ confinement
Darbi
hazarding a
vessel, terrorism,
attempt, and
aiding the enemy
Source: Prepared by CRS from data derived from the Military Commissions website, http://www.mc.mil.
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Military Commissions
Military commissions are courts usually set up by military commanders in the field to try persons
accused of certain offenses during war.27 They may also try persons for ordinary crimes during
periods of martial law or military occupation, where regular civil courts are not able to function.28
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.29 Historically, military commissions have applied the same set of
procedural rules that applied in courts-martial.30 By statute, military commissions have long been
available to try “offenders or offenses designated by statute or the law of war.”31 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, 1846-1848, the Civil War, the
Philippine Insurrection of 1899-1902, and in occupied Germany and Japan after World War II.32
President Bush’s Military Order setting up military commissions appeared to have been designed
to replicate a pair of military commission orders issued during World War II by President
Roosevelt for the trial of German saboteurs caught within the territory of the United States after
having evaded U.S. coastal defenses. These tribunals were historically a bit anomalous in that
they took place in Washington, DC, during a period when the civilian courts were open. A similar
practice during the Civil War, which accounted for a small number of the military commission
cases, was held unconstitutional. The Supreme Court held essentially in Ex parte Milligan33 that
military trials of persons who had never been members of the armed forces of the United States
could never be valid on friendly territory where martial law has not been declared and civilian
courts are functioning. However, the Supreme Court upheld the F.D.R. tribunals by explaining
27 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).
28 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.
29 See U.S. Army Field Manual (FM) 27-10, The Law of Land Warfare, Section 505(e) [hereinafter “FM 27-10”].
30 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).
31 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 29, 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);
GEORGE B. DAVIS, A TREATISE ON THE MILITARY LAW OF THE UNITED STATES 417-18 (3d ed. 1913)(arguing that arts. 45
& 46 of the Articles of War, the precursors to 10 U.S.C. §§904 & 906, were essentially reliant on martial law to
establish jurisdiction over civilians). Spying is not technically a violation of the law of war, but violates domestic law
and traditionally may be tried by military commission. See FM 27-10, supra footnote 29, 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”).
32 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).
33 71 U.S. (4 Wall.) 1 (1867).
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
that the holding in Milligan was limited to cases in which civilians—persons who are not
members of the armed forces of an enemy government—were tried by military commission, and
did not preclude the government from trying enemy belligerents for violations of the law of war,
regardless of the operational status of the civilian courts.
The Bush Administration established rules prescribing detailed procedural safeguards for the
tribunals.34 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.35 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.,36 or that the
Department of Defense may continue to detain persons who have been found not guilty by a
military commission.37 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.38
The Military Commissions Act (“MCA”)39 grants the Secretary of Defense express authority to
convene military commissions to prosecute those fitting the definition under the MCA of “alien
unprivileged enemy belligerents.”40 The Secretary delegated the authority to a 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.41
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
34 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. These historical documents can be
found at http://www.mc.mil/LEGALRESOURCES/MilitaryCommissionsDocuments/HistoricalDocuments.aspx.
35 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.
36 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 Guantánamo 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.”)
37 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).
38 See Neil A. Lewis, Two Prosecutors Faulted Trials for Detainees, NY TIMES, August 1, 2005, at A1.
39 P.L. 111-84 at codified as amended at chapter 47a of Title 10, U.S. Code. Unless otherwise noted, the terms
“Military Commissions Act” or “MCA” (without specifying the year enacted) in this report refer to the 2009 version of
the act as codified in Title 10.
40 10 U.S.C. §948h and 948c.
41 Available at http://www.defenselink.mil/news/Apr2007/Reg_for_Trial_by_mcm.pdf. The latest version of the
regulation was published in 2011 and is available at http://www.mc.mil/Portals/0/2011%20Regulation.pdf.
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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 36.42 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], while instructive, is therefore not of its own force
binding on military commissions established under this chapter.”43 It expressly exempts these
military commissions from UCMJ articles 10 (speedy trial), 31 (self-incrimination warnings) and
32 (pretrial investigations),44 and the MCA 2006 amended articles 21, 28, 48, 50(a), 104, and 106
of the UCMJ to except military commissions under chapter 47A.45 Other provisions of the UCMJ
are to apply to trial by military commissions under chapter 47A only to the extent provided
therein.46
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.47 A person
designated by President Bush as subject to his M.O. was amenable to detention and possible trial
by military tribunal for violations of the law of war and “other applicable law.”48 The MCA 2006
largely validated President Bush’s jurisdictional scheme for military commissions.
Jurisdiction over the Offender
The MCA, as amended in 2009, authorizes military commissions to try any “alien unprivileged
enemy belligerent,” which includes an individual (other than a privileged belligerent)49 who:
(A) has engaged in hostilities against the United States or its coalition partners;
42 MCA 2006 §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”).
43 10 U.S.C. §948b.
44 10 U.S.C. §948b(d).
45 MCA 2006 §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)). The 2009 MCA amendments, Title XVIII of P.L. 111-84,
enable military commissions under chapter 47A to try alien enemy unprivileged belligerents for violating 10 U.S.C.
§§904 and 906, but did not amend 10 U.S.C. §§904 & 906 to reflect the change.
46 10 U.S.C. §948b(d)(2).
47 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; 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”).
48 M.O. §1(e) (finding such tribunals necessary to protect the United States and for effective conduct of military
operations).
49 A privileged belligerent is defined “ an individual belonging to one of the eight categories enumerated in Article 4 of
the Geneva Convention Relative to the Treatment of Prisoners of War,” 10 U.S.C. §948a(6).
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(B) has purposefully and materially supported hostilities against the United States or its
coalition partners; or
(C) was a part of Al Qaeda at the time of the alleged offense under [chapter 47A of Title 10,
U.S. Code].50
Thus, persons who do not directly participate in hostilities, but “purposefully and materially”
support hostilities, are subject to trial under the MCA.51 Citizens who fit the definition of
“unprivileged enemy belligerent” are not amenable to trial by military commission under the
MCA, but their detention is not expressly precluded.52
The MCA, as amended, defines “hostilities” to mean any conflict “subject to the laws of war.”53 It
does not 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.54 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 “unprivileged enemy belligerent.” 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 Quirin55 for unlawful belligerents, to the
extent such persons enjoy constitutional protections, would likely raise significant constitutional
50 10 U.S.C. §948a(7). Prior to the 2009 amendment, any alien “unlawful enemy combatant” was subject to
jurisdiction, which was defined to mean:
(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.
Previous 10 U.S.C. §948a(1).
51 The definition applies to military commission jurisdiction, and does not describe who can be detained under the
AUMF. Some judges in the U.S. District Court for the District of Columbia have adopted a more restrictive definition
to describe such persons, who were 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.”).
52 For analysis of the authority to detain U.S. citizens, see CRS Report R42337, Detention of U.S. Persons as Enemy
Belligerents, by Jennifer K. Elsea
53 10 U.S.C. §948a(9).
54 See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Duncan v. Kahanamoku, 327 U.S. 304 (1945).
55 317 U.S. 1 (1942).
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questions. To date, no resident aliens have been charged for trial before a military commission
under the MCA.
As originally enacted, the MCA 2006 did not specifically identify who was to make the
determination that defendants met the definition of “unlawful enemy combatant.” The
government sought to establish jurisdiction based 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.56 The
CSRTs, however, were 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.57 The Court of Military
Commission Review (CMCR) reversed.58 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]).59
As a consequence of the decision, the prosecution has 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,60 and the 2009 MCA amended 10 U.S.C.
Section 948d to task the military commission with establishing its own jurisdiction. Under the
56 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.
57 See Josh White and Shailagh Murray, Guantánamo Ruling Renews the Debate Over Detainees, WASH. POST, June 6,
2007, at A3.
58 United States v. Khadr, 717 F. Supp. 2d 1215 (USCMCR 2007).
59 Id. at 1228. The statutory language defining who can be tried was altered by the MCA 2009. See supra, footnote 50.
60 Gates letter, supra footnote 19.
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amended language, membership in Al Qaeda (but not the Taliban) appears sufficient to establish
jurisdiction, regardless of whether the defendant participated in or even supported hostilities,
although the defendant must generally be alleged to have committed one of the listed crimes “in
the context of and associated with hostilities.”61
Subject Matter Jurisdiction
The MCA provides jurisdiction to military commissions to try alien unprivileged belligerents for
listed offenses as well as Sections 904 and 906 of Title 10 (aiding the enemy and spying), or the
law of war, “whether such offense was committed before, on, or after September 11, 2001.”62
Crimes to be triable by military commission are defined in subchapter VIII (10 U.S.C. §§950p–
950t). The MCA defines the following offenses: 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; attempts;
conspiracy; solicitation; contempt; perjury and obstruction of justice.
The MCA largely adopted the list of offenses DOD had authorized for trial by military
commission under the presidential order.63 That list was not meant to be exhaustive. Rather, it was
intended as an illustration of acts punishable under the law of war64 or triable by military
commissions.65 The regulations contained an express prohibition of trials for ex post facto
crimes.66
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,67 some of the listed crimes
61 10 U.S.C. §950p(c).
62 10 U.S.C. §948d.
63 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”].
64 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.
65 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.
66 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.”).
67 International armed conflicts are governed primarily by the Hague Convention No. IV Respecting the Laws and
(continued...)
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may be 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.68 The crime of “murder in violation of the law of
war,” which punishes persons who commit hostile acts that result in the death of any persons,
including lawful combatants, may also be new, depending on how it is interpreted. The
Department of Defense had argued that the element “in violation of the law of war” is established
by showing that the perpetrator is an unprivileged belligerent.69 The latest version of the Manual
for Military Commissions70 reflects the understanding that the offense may be tried by military
commission even if it does not violate the international law of war.71
(...continued)
Customs of War on Land, October 18, 1907, 36 Stat. 2277 (“Hague Convention”), and the Geneva Conventions.
Non-international armed conflicts are not covered by the Hague Convention, and are covered only by Common Article
3 of the Geneva Conventions. However, some international criminal tribunals have worked to define war crimes
applicable in non-international armed conflicts. 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.
68 Hamdan v. Rumsfeld, 548 U.S. 557, 611 (2006).
69 M.M.C. 2007, supra footnote 10, at IV-11-12. The comment on the crime “intentionally causing serious bodily
injury” stated that “For the accused to have been acting in violation of the law of war, the accused must have taken acts
as a combatant without having met the requirements for lawful combatancy.” With respect to the crime “destruction of
property in violation of the law of war,” the M.M.C. stated that “A ‘violation of the law of war’ may be established by
proof of the status of the accused as an unlawful combatant or by proof of the character of the property destroyed, or
both.” Id. at IV-13.
70 Department of Defense, Manual for Military Commissions 2012 (M.M.C. 2012).
71 Id. at IV-14 (comment to the crime of murder in violation of the law of war). Oddly, that the killing “was in violation
of the law of war” remains an element of the offense. Id.
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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, 72 it is not clear that the murder
constitutes a violation of the law of war (rather than domestic or martial law),73 or that the same
principle applies in armed conflicts of a non-international nature, where combatant immunity
does not apply.74 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 protected
persons, but have found that the killing of a combatant is not necessarily a war crime.75 Thus,
prison guards at Omarska and other detention camps were found guilty, among other crimes, of
“murder, as a violation of the laws or customs of war” for causing the deaths of prisoners.76
Similarly, the International Criminal Court applies a definition of murder in the context of a non-
international armed conflict to require that the victim is a protected person,77 while the killing (or
wounding) of a “combatant adversary” is defined as a war crime only if it is done
“treacherously.”78
72 Civil War records contain many examples of military commission cases against persons who, although not members
of “any lawfully organized or authorized force at war with the United States,” participated in the killing of other
persons, including soldiers, “contrary to the laws and customs of war.” See, e.g. Trial of Smith Crim, General Order
(G.O.) 151, May 26, 1863 (trial of civilian in Missouri for murder of a U.S. Army officer); Trial of Thomas J. Caldwell
and others, G.O. 267, August 3, 1863 (trial of guerrilla for murder of U.S. soldier as well as loyal citizens in Missouri).
However, the fact that specifications of the charges often included reference to the defendant being “a citizen of the
United States and owing allegiance thereto” or that the act took place “within the lines occupied by the lawfully
authorized military force of the United States” suggests that the actual legal basis for the charge was a state of martial
law or military occupation rather than the law of war as it applies to belligerents.
73 See, generally, David R. Frakt, Direct Participation in Hostilities as a War Crime: America’s Failed Efforts to
Change the Law of War, 46 VAL. U. L. REV. 729 (2012).
74 The U.S. Civil War was considered to be governed by the rules of international warfare as far as combatant immunity
and related concepts were concerned. See, e.g., Trial of T.E. Hogg and others, G.O. 52, HQ, Department of the Pacific,
June 27, 1865, reprinted in [Series II] 7 WAR OF THE REBELLION: OFFICIAL RECORDS OF THE UNION AND CONFEDERATE
ARMIES (“OFFICIAL RECORDS”) 674, 677 (1899) (“[C]ivil wars are not distinguishable from other wars as to belligerent
and neutral rights ... in such contests the principles of public law in relation to belligerents must govern, and all the
rights which a state of war gives to public enemies are to be allowed to the respective parties engaged in
them.”)(quoting “Stevenson to Palmerston”); General Order No. 1, HQ, Dept. of the Missouri, January 1, 1862,
reprinted in [Series I] 8 OFFICIAL RECORDS at 476-78. With respect to the current conflict against Al Qaeda, the
Supreme Court in Hamdan held that Common Article 3 applies, interpreting “conflict not of an international nature” in
the definition “in contradistinction to a conflict between nations,” which the Geneva Conventions designate a “conflict
of international character.” 548 U.S. 557, 630 (2006).
75 See, e.g., Prosecutor v. Pavle Strugar, Case No. It-01-42-A (Appeals Chamber), Judgment, July 17, 2008, para. 172
(“In order to prove cruel treatment as a violation of Common Article 3 ... the Prosecution must prove beyond a
reasonable doubt that the victim of the alleged offence was a person taking no active part in the hostilities”); 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.’”), aff’d. Case No. IT-98-30/1-A (Appeals Chamber), February 28, 2005;
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.”).
76 Prosecutor v. Kvocka et al. (The elements of the “murder” offense vary depending on whether it is charged as a
violation of the laws and customs of war or a crime against humanity).
77 See KNUT DÖRMANN, ELEMENTS OF WAR CRIMES UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL
COURT 383 (2003) (describing elements common to crimes under article 8(2)(c) of the Rome Statute of the International
Criminal Court).
78 See id. at 476 (describing elements of “killing or wounding treacherously a combatant adversary” under article
8(2)(e)(ix) of the Rome Statute).
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While one of the Guantánamo military commission judges found, without elaborating on what
“murder in violation of the law of war” entails, that Congress could reasonably conclude that it
constitutes a common law violation of the law of war,79 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.”80 There is historical
support for the view that the offense pertains to means and methods of killing, but the notion that
the unlawfulness element may be satisfied by proof that the offender is an “unlawful combatant”
is not well supported. Military commissions were used during the U.S. Civil War to try the charge
of “murder in violation of the law of war,” but this charge apparently applied to privileged
belligerents who committed murder perfidiously or who killed prisoners of war,81 while
unprivileged belligerents were charged simply with murder.82 The charge of “murder, in violation
of the laws of war” was occasionally brought against Filipino natives during the Philippine
Insurrection, generally involving the killing of unarmed civilians or prisoners.83 However, it is not
easy to discern why some cases were charged as “murder” while others had added the phrase “in
violation of the laws of war.”84 Sometimes the distinction appears to turn on the status of the
victim, other times the determining factor seems to be the status of the perpetrator or more
precisely, the authority under which the hostile act was carried out. Murder qualified by reference
to the law of war was charged most frequently against those whose legitimacy as combatants was
not challenged. In one case in which insurgents killed U.S. soldiers during a firefight, the
79 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).
80 United States v. Jawad, Ruling on Defense Motion to Dismiss—Lack of Subject Matter Jurisdiction (D-007)
(September 24, 2008) (rejecting prosecution argument that ‘murder in violation of the law of war’ is identical to the
charge of ‘murder by an unprivileged belligerent’). Two other judges reached similar conclusions. See 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., June 30, 2006 (prepared testimony of former
Guantánamo military defense attorney Maj. David Frakt, USAFR).
81 See CHARLES ROSCOE HOWLAND, A DIGEST OF OPINIONS OF THE JUDGE ADVOCATES GENERAL OF THE ARMY, 1071-72
(1912); id. at 1072 & note 1 (noting that 1873 military commission trying Modoc Indians for ‘a treacherous killing of
an enemy during a truce’ charged the offense as “murder in violation of the law of war”); Trial of Henry Wirz, General
Court Martial Order (G.C.M.O.) no. 607, November 6, 1865, reprinted in [Series II] 8 OFFICIAL RECORDS OF THE
UNION AND CONFEDERATE ARMIES 784, 786 (1899) (Confederate officer charged for “murder in violation of the laws
and customs of war” for shooting death of prisoner of war); Trial of James W. Duncan, G.C.M.O. 153, June 8, 1866
reprinted in [Series II] 8 OFFICIAL RECORDS 926 (1899) (employee “in the rebel military service” charged with “murder
in violation of the laws of war” for beating death of prisoner).
82 See cases listed supra note 72; Trial of Frank B. Gurley, G.C.M.O. no. 505, September 6, 1865, reprinted in [Series
II] 8 OFFICIAL RECORDS 741 (Judge Advocate General approved conviction of “citizen” not “lawfully in the services of
the so-called Confederate States” for murder of U.S. general officer where accused could not provide proof of
Confederate commission). Gurley was, despite his death sentence, exchanged as a prisoner of war, to the consternation
of the Judge Advocate General, see id. at 742. Military commission trials of persons not in the service of the
Confederate government, including those tried for guerrilla activities in during periods of martial law, were later held
invalid by civil courts on the basis that civil courts were open when the trials took place. In re Murphy, 17 F. Cas. 1030
(1867); District Court v. Commandant of Fort Delaware, 25 F. Cas. 590 (1866); In re Egan, 8 F. Cas. 367 (1866);
Thompson v. Wharton, 70 Ky. 563 (Ky. 1870). Military detention of such persons without trial was also held to be
unlawful. Johnson v. Jones, 44 Ill. 142 (Ill. 1867); Carver v. Jones, 45 Ill. 334 (Ill. 1867).
83 For military commission trials against Filipinos for cruelty to U.S. soldiers, see U.S. Congress, Senate Committee on
the Philippines, Affairs in the Philippine Islands, 57th Cong., 1st sess., April 10, 1902, S.Hrg. 57-331, 1340 et seq.
(Washington: GPO, 1902). Sometimes the charge was listed as “murdering prisoners in violation of the laws of war” or
similar language.
84 In one case in which an accused was tried for both types of murder, the difference appears to be that simple murder
applied to the killing of Filipino scouts and other officials in the employ of the United States (outside of ordinary
combat), while the murder of civilians suspected to be spies was “in violation of the laws of war.” Id. at 1249-50.
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conviction for murder in the violation of the laws of war was overturned in part on the basis that
“[t]he killing of the deceased soldiers in an engagement with a regular detachment of the public
enemy is not murder but a natural consequence incidental to a state of war.”85
Similarly, defining as a war crime the “material support for terrorism”86 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.”87 The Court of Military Commission
Review affirmed,88 but was overruled by the U.S. Court of Appeals for the D.C. Circuit.89 The
issue may be headed to the Supreme Court.
The Supreme Court’s decision in Ex parte Milligan90 may have limited the extent to which such
crimes may be tried by military commissions where martial law has not been established, and
may also call into question whether such crimes are properly considered war crimes or should be
treated as ordinary crimes triable by military commissions when necessity demands it.91 Charges
related to aiding guerrillas were typically accompanied by a specification stating that the accused
was a citizen and owed allegiance to the United States, but not ordinarily stating that the activity
violated the law of war,92 suggesting that the offense was a violation of martial law rather than the
international law of war applicable to belligerents.
85 Id. at 1362 (reprinting G.O. 171, July 13, 1901). It was also noted that the accused had not himself fired a weapon.
The judge advocate went on to note that under the circumstances, conspiracy to commit the crime (murder, in violation
of the laws of war) would not be warranted, either, but that the accused might have been found guilty of being a “war
traitor” to the military government. In another case, a sentence for “murder” of a town official as well as “violations of
the laws of war” for attacking a U.S. garrison was disapproved because “[t]he accused was a regularly commissioned
officer of the hostile army engaged in a contemplated attack upon the enemy under the orders of his officers.” Id. at
1231-32 (reprinting G.O., 197, July 27, 1901). That the participants had covered their uniforms and weapons during the
operation was excused as a “ruse de guerre,” and the killing of the official justified by his resistance to being taken
prisoner. Id.
86 10 U.S.C. §950t(b)(25)(incorporating the definition found in 18 U.S.C. §2339A).
87 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
88 Hamdan v. United States, 801 F. Supp. 2d 1247 (USCMCR 2011).
89 Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012).
90 71 U.S. (4 Wall.) 2 (1866). Lambdin Milligan and others were tried by military commission for conspiracy and
“violations of the law of war,” among other offenses, for participating in a secret armed organization opposed to the
Union’s efforts to prevent the secession of southern states and planning to use force in aid of the rebellion. G.O. 27, HQ
District of Indiana (May 9, 1865), reprinted in [Series II], vol. 8 OFFICIAL RECORDS 543 - 49. The Supreme Court,
while not disputing military commission jurisdiction over violations of the “laws and usages of war,” stated those laws
and usages “... can never be applied to citizens in states which have upheld the authority of the government, and where
the courts are open and their process unobstructed.” 71 U.S. at 121. By treating the case as one related to the legitimacy
of martial law, the Court implicitly rejected the government’s position that such activities, when committed by
unprivileged belligerents, were amenable to military jurisdiction as violations of the law of war. Compare id. with Ex
parte Quirin, 317 U.S. 1 (1941) (military commission jurisdiction appropriate for German saboteurs who breached U.S.
coastal defenses despite absence of martial law).
91 See cases listed supra note 82.
92 G.O. 4, HQ Dept. of the Missouri (January 16, 1864) 7 (accused was convicted and banished to Iowa on a charge of
“harboring and feeding guerrillas”); G.O. 164, HQ, Dept. of the Missouri 8 (September 8, 1864) (conviction of
“harboring and feeding guerrillas” as well as “giving aid and comfort to rebel enemies ... ”); G.O. 236, HQ, Dept. of the
Missouri 8 (December 26, 1864) (“harboring and feeding guerrillas”).
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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.93 In any event, the
Obama Administration earlier 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.94 All but one of the detainees against whom charges had been filed prior to 2011 had at
least one count of “material support for terrorism” among them,95 although in most cases the
allegations underlying the charge appeared under other charges as well. Congress chose not to
eliminate the material support charge when it amended the MCA in 2009. Newer cases have
avoided the charge, although one case appears to charge equivalent conduct as “aiding the
enemy” under UCMJ article 904.96
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.97 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,98 nor is it entirely clear in
all cases 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
93 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 December 10, 1900). It appears that the terms “martial law” and the “law of
hostile [or belligerent] occupation” were used interchangeably.
94 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.”)
95 Mohammed Jawad was originally charged with attempted murder in violation of the law of war and attempt to cause
serious bodily injury. Both charges were later dropped. Charge sheets are available at http://www.mc.mil.
96 Almed al Darbi was charged with aiding the enemy, among other offenses, in connection with terrorist attacks
against shipping vessels. Abd al-Rahim Al-Nashiri is also charged with for offenses related to the bombing of the USS
Cole in the Gulf of Aden and another attack on a vessel, but is not charged with aiding the enemy.
97 See WINTHROP, supra footnote 30, 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).
98 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).
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commissions exceeded the customary law of armed conflict, although DOD regulation purported
to restate customary law.99 The MCA provides jurisdiction to military commissions over covered
offenses “when committed by an alien unprivileged enemy belligerent before, on, or after
September 11, 2001.”100 Further, the MCA states that it codifies offenses “that have traditionally
been triable by military commission” and establishes no “new crimes that did not exist before
[its] enactment”; and that therefore it “does not preclude trial for offenses that occurred before the
date of the enactment of this subchapter, as so amended.”101 Whether, in fact, the offenses were
established under the law of war prior to the enactment of the MCA has already been the subject
of two successful challenges by defendants.
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 hostilities in order to be triable by military commission. In 2008, the
military judge in the Hamdan case concluded that a nexus with hostilities was required, 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.”102
Composition and Powers
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 panels are to
consist of twelve members unless that number are not reasonably available, in which case the
minimum is nine panel members.103 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.
Section 949d.104 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.
The MCA empowers military commissions to maintain decorum during proceedings. Previously,
under the DOD rules prior to enactment of the 2006 MCA, the presiding officer was authorized
“to act upon any contempt or breach of Commission rules and procedures,” including disciplining
any individual who violates any “laws, rules, regulations, or other orders” applicable to the
commission, as the presiding officer saw fit. Presumably this power was to include not only
military and civilian attorneys but also any witnesses who had been summoned under order of the
99 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).
100 10 U.S.C. §948d.
101 10 U.S.C. §950p(d).
102 United States v. Hamdan, Ruling on Motion to Dismiss (Res Judicata) (April 2, 2008).
103 10 U.S.C. §949m.
104 10 U.S.C. §948j.
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Secretary of Defense.105 The MCA, 10 U.S.C. §950t, 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 unprivileged belligerent
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.106 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.107 Although the MCA does not set limits on
punishment for contempt, the M.M.C. 2012 limits confinement to 30 days and fines to $1000.108
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.”109 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, in a manner comparable “to the opportunity available to a criminal
defendant” in an article III court.110 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 or is protected, but the defense counsel may appeal the determination to
the convening authority or, after referral, the military judge.111
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.112
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
105 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”).
106 Rule for Military Commissions (R.M.C.) 809, M.M.C. 2012 supra footnote 70, at II-78.
107 See 10 U.S.C. §848. This section is made inapplicable to military commissions in chapter 47A by MCA 2006 §4
108 R.M.C. 809, M.M.C. 2012, supra footnote 70, at II-79.
109 10 U.S.C. §949j. P.L. 111-84 §1807 expresses the sense of Congress that
(1) the fairness and effectiveness of the military commissions system under chapter 47A of title 10,
United States Code (as amended by section 1802), will depend to a significant degree on the
adequacy of defense counsel and associated resources for individuals accused, particularly in the
case of capital cases, under such chapter 47A; and
(2) defense counsel in military commission cases, particularly in capital cases, under such chapter
47A of title 10, United States Code (as so amended), should be fully resourced as provided in such
chapter 47A.
110 10 U.S.C. §949j.
111 R.M.C. 703.
112 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.”
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comply with a subpoena.113 Subpoena authority under the UCMJ may not be used to compel a
civilian witness to travel abroad in order to provide testimony,114 so the corresponding authority
under the MCA may be insufficient to compel civilian witnesses to travel to Cuba. Testimony by
video transmission may be permitted in such cases.115
One of the perceived shortcomings of President Bush’s 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.116
The MCA, by providing requirements for the procedural rules to guard against command
influence, may alleviate some of 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,
that is, 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).117 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.118 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.119 Executive branch control over who
serves as military judges has also led to charges of unfairness.120
113 R.M.C. 703; R.C.M. 703.
114 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).
115 Mil. Comm. R. Evid. 611(d).
116 Hamdan, 647-51 (Kennedy, J. concurring).
117 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).
118 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).
119 United States v. Hamdan, Ruling on Motion to Dismiss (Unlawful Influence) (D-026) (May 9, 2008) (Ordering
(continued...)
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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 to the United States Court of Appeals for the
District of Columbia Circuit, but only “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 circuit court is empowered to take action “only with
respect to matters of law, including the sufficiency of the evidence to support the verdict.”121 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.122 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.123 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.124
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.125 The First Amendment right of public access
extends to trials by court-martial,126 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.”127 The reporters’ right to gather information does not include an absolute right to gain
(...continued)
substitute legal advisor be appointed for reviewing the case); United States v. Jawad, Ruling on Motion to Dismiss—
Unlawful Influence (D-004) (August 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).
120 United States v. Khadr, Ruling on Defense Motion to Dismiss (D-076) (August 15, 2008) (denying relief where
military judge was replaced after expiration of recall to active duty).
121 10 U.S.C. §950g. Previously, appeals could challenge only 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.”
122 10 U.S.C. §948q.
123 10 U.S.C. §949i.
124 10 U.S.C. §949a(b).
125 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). The Court of Appeals for the Armed Forces has ruled that it has no jurisdiction to
hear a challenge by media representatives to closures in a court-martial case. Center for Constitutional Rights v. United
States, 72 M.J. 126 (C.A.A.F. 2013).
126 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).
127 Pell v. Procunier, 417 U.S. 817, 822-24 (1974).
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access to areas not open to the public.128 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.129
The MCA provides that the military commission 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.130 The information
to be protected from disclosure does not necessarily have to be classified. To the extent that the
exclusion of the press and public is based on the discretion of the military judge without
consideration of the constitutional requirements relative to the specific exigencies of the case at
trial, the procedures may implicate the First Amendment rights of the press and public. 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.
One method military judges have adopted to protect classified information without closing a
hearing to the public 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.131 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.
The MCA of 2009 inserted a new subtitle V to provide procedures for handling classified or
sensitive information, including the closure of evidentiary hearings when such information is to
be discussed, the sealing of records, and the issuance of protective orders. It states that the trial
counsel may “object to any question or line of inquiry that may require the witness to disclose
classified information not previously found to be admissible” during testimony.132 In such
circumstances, the military judge is to “take such suitable action to determine whether the
response is admissible as will safeguard against the compromise of any classified information,”
which may leave room for the use of time delay devices as described above, though the measure
isn’t expressly authorized.
128 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).
129 See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984).
130 10 U.S.C. §949d(c).
131 E.g., United States v. Hamdan, Protective Order #3 (June 4, 2008).
132 10 U.S.C. §949p-7.
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The American Civil Liberties Union (ACLU) and various media groups filed a petition for
mandamus with the Court of Military Commission Review (CMCR)133 challenging the scope of
the protective order issued in the case against the five alleged September 11 conspirators on the
basis of its perceived inconsistency with the First Amendment. The CMCR denied the writ
without deciding whether it had jurisdiction to issue the writ, finding the controversy to be unripe
for decision.134
Right to Be Present
Under UCMJ art. 39,135 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
(assigned) defense counsel was to be present for all hearings.136 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.137 However, the
accused may be excluded from in camera considerations regarding the treatment of classified
information.138 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.139
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, than under the
MCA. Under the MCA, at least one qualifying military defense counsel is to be detailed “as soon
as practicable.”140 The accused may also hire a civilian attorney who meets specific qualifications
and agrees to comply with all applicable rules. If civilian counsel is hired, the detailed military
133 For more information about the Court of Military Commission Review (CMCR), see infra at p. 31.
134 ACLU v. United States, CMCR Case No. 13-003 (March 27, 2013), available at http://www.mc.mil/Portals/0/pdfs/
ACLU13-003/13-
003%20ACLU%20Writ%20%28Ordering%20Dismissal%29%20%28J.%20Silliman%20Concur%29%20%28Mar%20
27%202013%29.pdf.
135 10 U.S.C. §839.
136 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.
137 10 U.S.C. §949d(d).
138 United States v. Khadr, Ruling on Defense Motion for Appropriate Relief (D-015) (February 21, 2008).
139 R.M.C. 804 (discussion).
140 10 U.S.C. §948k. The MCA 2006 required only that defense counsel be detailed “as soon as practicable after the
swearing of charges against the accused.”
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counsel serves as associate counsel.141 Unlike the previous DOD rules, the MCA provides that the
accused has the right to self-representation.142
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 Judge Advocate General (JAG) officer
to be assigned as a replacement if available in accordance with any applicable instructions or
supplementary regulations that might later be issued.143 The MCA, as amended, incorporates this
measure, providing the accused an opportunity to request a specific JAG officer to act as counsel,
if the requested officer is reasonably available.144 DOD regulations provide that 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.145 The M.M.C. provides that, in the event the accused elects to represent himself, the
detailed counsel shall serve as “standby counsel,”146 and the military judge may require that such
defense counsel remain present during proceedings.147
The MCA requires civilian attorneys defending an accused before military commission to meet
the same strict qualifications that applied under DOD rules.148 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.149 The MCA does not set forth in any detail what rules might be established to
govern the conduct of civilian counsel. Under the last-issued 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.”150 Alternatively, the Chief Defense Counsel may
refer the matter to either the convening authority or the DOD Deputy General Counsel (Personnel
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
141 10 U.S.C. §949c(b); R.M.C. 804.
142 10 U.S.C. §949a(b)(2)(D). The military judge can revoke the accused’s right to self-representation if the accused
fails to conduct his defense within the relevant rules and decorum applicable in military commission trials. Prior to the
2006 MCA, 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).
143 M.C.O. No. 1 §4(C).
144 10 U.S.C. §949c(b)(2).
145 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. R.C.M. 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.
146 R.M.C. 501.
147 R.M.C. 506(d).
148 10 U.S.C. §949c(b).
149 10 U.S.C. §949c, R.M.C. 502(d)(3).
150 Regulation for Trial by Military Commissions 2011, Para. 9-5(C).
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lawyer-client privilege that applies in courts-martial.151 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.152 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.”153 The required agreement under
the current regulations imposes a similar duty to inform, but does not mention monitoring of
communications.154 The revelation that the rooms where attorneys are permitted to meet with
clients were fitted with hidden listening devices has caused some concern among defense
attorneys at military commission proceedings.155
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.”156 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.”157 In courts-martial, the Military Rules of Evidence (Mil. R.
Evid.)158 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].”159
Relevant evidence is excluded if its probative value is outweighed by other factors.160 The
151 Mil. R. Evid. 502.
152 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.
153 M.C.I. No. 5, Annex B §II(J).
154 Regulation for Trial by Military Commissions 2011, Figure 9.2. Affidavit and Agreement by Civilian Defense
Counsel, II(J).
155 See Carol Rosenberg, FBI hid microphones in Guantánamo, but no one listened, prison commander testifies, MIAMI
HERALD, February 13, 2013, available at http://www.miamiherald.com/2013/02/13/3232992/fbi-hid-microphones-in-
guantanamo.html.
156 U.S. CONST. Amdt. VI applies in courts-martial. E.g. United States v. Scheffer, 523 U.S. 303 (1998).
157 Maryland v. Craig, 497 U.S. 836, 845 (1990).
158 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.).
159 Mil. R. Evid. 402.
160 Mil. R. Evid. 403 (relevant evidence may be excluded “if its probative value is substantially outweighed by the
(continued...)
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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,161 with some allowance for protecting non-relevant classified
information.162
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.”163
The MCA provides that the accused has the right “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.”164 It is not clear
what evidence might be excluded from this requirement as irrelevant to the issues of guilt,
innocence, or appropriate punishment. It is possible that this provision could be interpreted not to
apply to evidence relevant to the credibility of a witness or the authenticity of a document, so that
the accused would have no right to examine and respond to such 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.165 It does not guarantee the
defense equal opportunity with the prosecution to obtain such evidence, as is the case at general
courts-martial.166 The MCA provides that all of the information admitted into evidence at trial
under any rule must be provided to the accused.167 The accused is also entitled to exculpatory and
mitigating information known to the prosecution or investigators, 168 with procedures permitting
some variance for security concerns.169
(...continued)
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”).
161 See R.C.M. 701(a)(6).
162 Mil. R. Evid. 505 provides procedures similar to the Classified Information Procedures Act (CIPA) that applies in
civilian court.
163 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”). The Court viewed the
international law of war to be incorporated by Congress into the UCMJ language authorizing military commissions.
164 10 U.S.C. §949a.
165 10 U.S.C. §949j.
166 10 U.S.C. §846.
167 10 U.S.C. §949p-1(b).
168 10 U.S.C. §949j. The prosecution is obligated to provide, as soon as practicable, information that is known or
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The MCA provides for the protection of national security information during the discovery phase
of a trial under procedures similar to the Classified Information Procedures Act and the Manual
for Courts-Martial.170 Classified information is privileged and need not be disclosed.171 Where
M.C.O. No. 1 permitted the withholding of any “Protected Information,”172 the MCA permits the
government to withhold only information determined by the United States Government pursuant
to statute, executive order, or regulation to require protection against unauthorized disclosure for
reasons of national security.173 Further, if the government wishes to withhold any classified
information, the trial counsel must submit a declaration, signed by a knowledgeable official with
classification authority, invoking the United States’ classified information privilege and setting
forth the damage to the national security that the discovery of or access to such information
reasonably could be expected to cause.174 The military judge may authorize production of the
classified information if she determines that it would be “noncumulative, relevant, and helpful to
a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing,” in accordance
with standards generally applicable in federal criminal cases.175 Specifically, 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.176 Trial counsel may submit applications for protective measures on an ex parte basis, and
the MCA does not provide defense counsel with access to the classified information that serves as
the basis for substitute or redacted proffers. The decision to permit a substitution or grant other
relief, which is required so long as the military judge determines such relief would “provide the
accused with substantially the same ability to make a defense” as would access to the classified
information itself, is not subject to a motion for reconsideration, but all of the submitted
information and hearing transcripts are sealed and preserved for submission in case of appeal.
Admissibility of Evidence
The Secretary of Defense may prescribe in the rules of evidence that evidence is admissible as
authentic if the military judge determines that “there is sufficient evidence that the evidence is
what it is claimed to be,” and instructs the members that they may consider any issue as to
authentication or identification of evidence in determining the weight, if any, to be given to the
(...continued)
reasonably should be known to the prosecution or any government officials who participated in the investigation that
tends to negate or mitigate the guilt of the accused of an offense charged or to impeach the credibility of a witness
whom the government intends to call at trial. As soon as practicable after a finding of guilt, the prosecution is required
to disclose any other information that might reasonably be viewed as mitigating factors for sentencing.
169 10 U.S.C. §§949p-(1-7). Where potential evidence is classified, trial counsel is to work with the original
classification authority to declassify the information to the maximum extent possible, but decisions not to declassify are
not subject to review by the military judge. 10 U.S.C. §949p-1(c).
170 10 U.S.C. §949p-4.
171 10 U.S.C. §949p-1(a).
172 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”).
173 10 U.S.C. §§948a(2) & 949p-1.
174 10 U.S.C. §949p-4(a).
175 Id.
176 10 U.S.C. §949p-4(b).
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evidence.177 The accused is entitled to the exclusion of evidence that is not probative or reliable,
or of evidence the probative value of which 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.”178
Coerced Statements
The MCA prohibits the use of statements obtained through torture as evidence in a trial, except to
prove torture where the defendant is accused of committing torture. For information obtained
through coercion that does not amount to torture, the MCA 2006 provided 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 were admissible if the
military judge were to find that 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.179 Statements taken after passage of the
DTA were admissible if, in addition to the two criteria above, the military judge were to find that
“the interrogation methods used to obtain the statement do not violate the cruel, inhuman, or
degrading treatment prohibited by section 1003 of the Detainee Treatment Act.”180
The MCA 2009 eliminates the distinction above, making statements obtained through cruel,
inhuman or degrading methods inadmissible regardless of when they were made.181 The Obama
Administration had already amended the military commission regulations in May 2009 to remove
the discrepancy.182 Otherwise, out-of-court statements by the accused may be admitted if the
military judge finds that the totality of the circumstances renders the statement reliable and
possessing sufficient probative value; and either that the statement was voluntarily given or 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.”183 Voluntariness is to be determined
considering the totality of the circumstances, including the following:
(1) The details of the taking of the statement, accounting for the circumstances of the
conduct of military and intelligence operations during hostilities.
177 10 U.S.C. §949a(b)(C)(3). Under the military commissions established by the MCA2006, evidence was admissible
if the commission deemed it to have “probative value to a reasonable person.” Previous 10 U.S.C. §949a(b)(2)(a). This
standard was met 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. 401. 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. The elimination of the “probative value to a reasonable
person” standard by the MCA 2009 did not result in any changes to Mil. Comm. R. Evid. 401. (“Probative” differs
from “relevant” in that relevance includes an element of materiality to an issue, where “probative” simply means “tends
to prove” a fact, whether or not the fact is material to the case).
178 10 U.S.C. §949a(b)(2)(F). Under the MCA2006, this right could be (and was) included in the procedural rules at the
discretion of the Secretary of Defense.
179 Previous 10 U.S.C. §948r(c).
180 Previous 10 U.S.C. §948r(d).
181 10 U.S.C. §948r.
182 Gates letter, supra footnote 19. See Mil. Comm. R. Evid. 304 (2012).
183 10 U.S.C. §948r(c).
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(2) The characteristics of the accused, such as military training, age, and education level.
(3) The lapse of time, change of place, or change in identity of the questioners between the
statement sought to be admitted and any prior questioning of the accused.184
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.185 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.186
The current version of 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.187 Such treatment is regarded as torture under the Military
Commission Rules of Evidence.188 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
threats.189 The government sought to appeal the latter ruling, but later dropped the charges against
the detainee after he prevailed in his habeas petition.190
184 10 U.S.C. §948r(d).
185 Mil. Comm. R. Evid. 304(d).
186 Mil. Comm. R. Evid. 304(f).
187 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).
188 Mil. R. Evid. 304.
189 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).
190 For a detailed history of the Jawad case, see David J. R. Frakt, Mohammed Jawad And The Military Commissions Of
Guantánamo, 60 DUKE L.J. 1367 (2011).
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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-Martial191 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).”192 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.”193 The May 2009 changes to the regulations
reverse the burden of demonstrating reliability to the proponent of the evidence,194 and the MCA
2009 reflects the change.
The rules regarding hearsay are 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,195 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, perhaps creating a presumption of admissibility for hearsay evidence in
military commissions. Mil. Comm. R. Evid. 803 provides that hearsay may be admitted if it
would be admissible under the rules applicable at courts-martial. Otherwise, hearsay is admissible
only if the party proffering it notifies the adverse party with sufficient time 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; and the military judge
finds, considering the relevant circumstances,196 that
(A) the statement is offered as evidence of a material fact;
(B) the statement is probative for which it is offered;
(C) direct testimony from the witness is not available as a practical matter, taking into
consideration the physical location of the witness, the unique circumstances of military and
intelligence operations during hostilities, and the adverse impacts on military or intelligence
operations that would likely result from the production of the witnesses; and
191 Mil. R. Evid. 801-807 provide procedures for determining the admissibility of hearsay evidence in courts-martial.
192 10 U.S.C. §949a(b)(3)(D).
193 Previous 10 U.S.C. §949a(b)(2)(E) (rules that may be prescribed by the Secretary of Defense).
194 Gates letter, supra footnote 19.
195 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”).
196 These circumstances include “the degree to which the statement is corroborated, the indicia of reliability within the
statement itself, and whether the will of the declarant was overborne.... ” Mil. Comm. R. Evid. 803(b)(2).
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(D) the general purposes of the rules of evidence and the interests of justice will best be
served by admission of the statement into evidence.197
Under the previous rules, hearsay evidence was inadmissible if the opponent demonstrated by a
preponderance of the evidence that such hearsay was unreliable under the totality of the
circumstances.198 The current rules do not expressly allocate the burden of proof as to reliability
of hearsay evidence. Presumably it falls on the proponent of the evidence.
Classified Evidence
The MCA 2009 adopted rules for the protection of classified information that are similar to the
Classified Information Procedures Act (CIPA),199 which supplies rules for criminal trials in
federal civilian courts. The rules in subchapter V of the MCA also adopt modifications to CIPA
that reflect experience in courts that have construed it for use in federal terrorism trials.200 The
MCA directs military judges to view CIPA case law as authoritative unless such a construction
would be inconsistent with provisions of the MCA.201
At military commissions convened pursuant to the MCA, classified information202 is to be
protected during all stages of proceedings and is privileged from disclosure for national security
purposes.203 Whenever the United States seeks to protect certain information from disclosure in
any military commission case, the prosecution is to submit a declaration, signed by a
knowledgeable official with classification authority, invoking the privilege and setting forth the
damage to national security that would be expected to occur without protective measures.204 The
military judge may not authorize the discovery of or access to such information unless he
determines that it would be relevant and useful to any part of the defense’s case.205 The military
judge may authorize the United States to delete or withhold specified items of classified
information from documents made available to the accused; substitute a summary of the
information; or substitute a statement admitting relevant facts that the classified information
would tend to prove.206 The military judge must consider a claim of privilege and review any
supporting materials in camera if requested by the government, and must grant the relief sought if
he finds that the summary, statement, or other substitute would “provide the accused with
substantially the same ability to make a defense as would discovery or access to the specific
classified information.”207 The accused may not move for reconsideration of protective measures
197Mil. Comm. R. Evid. 803(b)(2). The language is identical to the MCA language found in 10 U.S.C. §949a(3)(D).
198 Mil. Comm. R. Evid. 803(c) (2007 MCM).
199 P.L. 96-456, October 15, 1980, codified at 18 U.S.C. App.
200 See DAVID S. KRIS & J. DOUGLAS WILSON, 2 NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS 2D, §24:14
(2012).
201 10 U.S.C. §949p-1(d).
202 Defined in 10 U.S.C. §948a(2) 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)).”
203 10 U.S.C. §949p-1.
204 10 U.S.C. §949p-4.
205 10 U.S.C. §949p-4(a)(2).
206 10 U.S.C. §949p-4(b).
207 10 U.S.C. §949p-4(b)(3).
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granted to the government if the order was entered pursuant to an ex parte showing.208 The
government, however, can bring an interlocutory appeal in the event the judge orders that
classified information must be disclosed or imposes sanctions for the government’s refusal to
permit disclosure, or refuses a protective order sought by the government.209
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
otherwise admissible as evidence, that it is reliable, and that the redaction is consistent with
affording the accused a fair trial.210
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.
Classified evidence is privileged under Mil. Comm. R. Evid. 505. 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.211 The military judge is required to take
appropriate action, such as taking a proffer of the nature of the information the witness might be
expected to provide, reviewing the matter in camera if requested by the government. The judge
may order that only parts of documents or other materials be entered into evidence, unless
fairness dictates the whole ought to be considered.212 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.213 In the event the military judge denies a government motion to provide a
substitution or alternative to disclosures and the accused is prevented from disclosing classified
information at trial due to the government’s objection, the military judge may dismiss the case or,
if the interest of justice is not served by dismissal, the judge may order other relief, such as
dismissal of specified charges or specifications, finding against the government on any issue to
which the excluded evidence is relevant, or striking or precluding all or part of a witness’s
testimony.214
208 10 U.S.C. §949p-4(c).
209 10 U.S.C. §950d.
210 10 U.S.C. §949p-6(c).
211 Mil. Comm. R. Evid. 505(i)(3).
212 Mil. Comm. R. Evid. 505(i). Similar procedures are permitted in courts-martial. Mil. R. Evid. 505(j).
213 Mil. Comm. R. Evid. 505(g). This rule is virtually identical to Mil. R. Evid. 505(h).
214 Mil. Comm. R. Evid. 505(h). Similar sanctions may be applied at courts-martial. Mil. R. Evid. 505(i)(4)(E).
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Sentencing
The MCA provides that military commissions may adjudge “any punishment not forbidden by
[the MCA], including the penalty of death….”215 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.”216 A vote of two-thirds of the members
present is required for sentences of up to 10 years.217 Longer sentences require the concurrence of
three-fourths of the members present.218 The death penalty must be approved unanimously, both
as to guilt (except in the case of a guilty plea) and to the sentence, by all members present for the
vote.219
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,220 and the charges referred to the commission must have expressly
sought the penalty of death.221 The death sentence may not be executed until the commission
proceedings have been finally adjudged lawful and all appeals are exhausted,222 and after the
President approves the sentence.223 The President is permitted to “commute, remit, or suspend [a
death] sentence, or any part thereof, as he sees fit.”224 For sentences other than death, the
Secretary of the Defense or the convening authority is permitted to adjust the sentence
downward.225
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.”226 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
215 10 U.S.C. §948d.
216 10 U.S.C. §949s.
217 10 U.S.C. §949m.
218 10 U.S.C. §949m(b)(3).
219 10 U.S.C. §949m(b)(2).
220 The death penalty may be authorized under the MCA, the UCMJ, or the laws of war. 10 U.S.C. §949m(b)(2). 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. §950t.
221 10 U.S.C. §949m.
222 An accused sentenced to death may neither waive his right to appeal nor withdraw an appeal. 10 U.S.C. §950c.
223 10 U.S.C. §950i(b)-(c).
224 10 U.S.C. §950i(b).
225 10 U.S.C. §950i(d).
226 R.M.C. 1001(b)(2).
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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.227
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 (except in the case of a guilty plea);228 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 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.229 Other aggravating
circumstances include specific law-of-war violations, which 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. The MCA 2009 did not make major changes to
the appellate structure.
Review and Appeal
The MCA 2006 codified the establishment of the review body set up under the pre-2006 DOD
rules for military commissions.230 The Court of Military Commission Review (CMCR) is
composed of judges who meet the same qualifications as military judges or comparable
qualifications for civilian judges.231 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.232 If the CMCR approves the verdict, the accused may
appeal the final decision to the U.S. Court of Appeals for the District of Columbia Circuit.233
Appellate court decisions may be reviewed by the Supreme Court under writ of certiorari.234
227 R.M.C. 1001(c)(2)(C). The trial counsel may rebut the statement. This procedure does not appear to differ
substantially from that used in courts-martial.
228 10 U.S.C. §949m was modified to permit accused in capital cases to plead guilty, an option that is not available
under the UCMJ. P.L. 112-81, §1030(a).
229 R.M.C. 1004(c). Previous versions of the Manual included as an aggravating offense that “the accused was
convicted of an offense, referred as capital, that is a violation of the law of war.”
230 M.C.I. No. 9 §4(C).
231 10 U.S.C. §950f. This section was modified in 2011 to remove an ambiguous reference to the judges on the court as
“appellate military judges,” which it was argued meant that judges had to be current appellate military judges and were
disqualified once they were no longer actively serving on an appellate military court under the UCMJ. P.L. 112-81,
§1034(c). It appears that judges appointed to the CMCR by the Secretary of Defense are still required to be appellate
military judges at the time of appointment. There is no such requirement for those appointed by the President with the
advice and consent of the Senate.
232 10 U.S.C. §859; 10 U.S.C. §950a(a).
233 10 U.S.C. §950g. No collateral attack on the military commission’s jurisdiction or verdict was permitted under the
(continued...)
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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.235 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.236
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.237 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.238 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.239 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.240
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.241 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.242
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.243
No relief may be granted by the CMCR unless an error of law prejudiced a substantial trial right
of the accused.244 The accused has 20 days after receiving notification of the CMCR decision to
(...continued)
MCA 2006. 10 U.S.C. §949j(b) previously provided 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.
234 10 U.S.C. §950g.
235 R.M.C. 1102(b).
236 Id.
237 R.M.C. 1105.
238 R.M.C. 1106.
239 R.M.C. 1107.
240 R.M.C. 1107; R.M.C. 1102A.
241 R.M.C. 1107(e).
242 R.M.C. 1107(f)(5).
243 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.
244 R.M.C. 1201.
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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.245
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).246
However, the regulations appeared to permit revisions of a verdict prior to its becoming final in
ways that might have resulted in double jeopardy.247
The MCA provides that “[n]o person may, without the person’s consent, be tried by a military
commission under this chapter a second time for the same offense.”248 Jeopardy attaches when a
guilty finding becomes final after review of the case has been fully completed.249 The MCA
prevents double jeopardy in such cases 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.250
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.251 Proceedings for
increasing the severity of a sentence are not permitted unless the commission failed to adjudge a
proper sentence under the MCA.252
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
signed under oath by a person with personal knowledge or reason to believe that matters set forth
therein are true,253 and requires that they be served on the accused written in a language he
understands.254 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
245 R.M.C. 1210. This option is not available to those convicted pursuant to a guilty plea.
246 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).
247 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.
248 10 U.S.C. §949h.
249 10 U.S.C. §949h.
250 10 U.S.C. §950b(d)(2)(B).
251 R.M.C. 1102(c).
252 Id. R.M.C. 1102(c) of the 2007 M.M.C. also permitted rehearing where the sentence was less than that agreed to in a
plea agreement.
253 10 U.S.C. §948q.
254 10 U.S.C. §948s.
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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.255 A specification must allege every element of the
charged offense expressly or by necessary implication.256 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.257 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.258
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.259 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.260 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.261
The following charts provide a comparison of general courts-martial to the military tribunals
under the Military Commissions Act of 2006 as initially enacted and as amended by the Military
Commissions Act of 2009. Chart 1 compares the legal authorities for establishing military
tribunals (including courts-martial), the jurisdiction over persons and offenses, and the structures
of the tribunals. Chart 2, which compares procedural safeguards, 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,262 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.
255 R.M.C. 307.
256 Id.
257 R.M.C. 602.
258 R.M.C. 603.
259 M.O. §7(e).
260 The MCA does not define when jeopardy attaches in the event a trial is halted prior to a verdict being reached
through no fault of the accused. Compare 10 U.S.C. §949h to Article 44 of the UCMJ, 10 U.S.C. §844.
261 R.M.C. 907.
262 See also CRS Report R40932, Comparison of Rights in Military Commission Trials and Trials in Federal Criminal
Court, by Jennifer K. Elsea.
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Chart 1. Comparison of Military Commission Rules
Authority
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
U.S. Constitution, Article I, §8, in
U.S. Constitution, Article I, §8, in
Same as for MCA 2006.
particular cl. 14 “To make Rules for
particular, cl. 10, “To define and
the Government and Regulation of
punish Piracies and Felonies
the land and naval Forces.”
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
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
Rules are provided by the Uniform
The Secretary of Defense may
The Secretary of Defense may
Code of Military Justice (UCMJ),
prescribe rules of evidence and
prescribe rules of procedure for
chapter 47, Title 10, and the Rules
procedure for military commissions
military commissions. Such rules may
for Courts-Martial (R.C.M.) and the
not inconsistent with the MCA.
not be inconsistent with the MCA.
Military Rules of Evidence (Mil. R.
Rules applicable to courts-martial
Procedural rules for general courts-
Evid.), issued by the President
under the UCMJ are to apply except
martial are to apply unless the MCA
pursuant to art. 36, UCMJ,
as otherwise specified.
or UCMJ provide otherwise.
10 U.S.C. §836.
Consultation with the Attorney
Former 10 U.S.C. §949a(a).
General is required only in cases of
The Secretary of Defense, in
exceptions, which continue to be
consultation with the Attorney
permissible “as may be required by
General, may make exceptions to
the unique circumstances of the
UCMJ procedural rules “as may be
conduct of military and intelligence
required by the unique
operations during hostilities or by
circumstances of the conduct of
other practical need.”
military and intelligence operations
10 U.S.C. §949a (as amended).
during hostilities or by other
practical need.”
Suppression of certain evidence is a
required right rather than an
Former 10 U.S.C.§949a(b).
optional rule (see Chart 2 specific
The rules must include certain rights
rights). The right to representation
as listed in former §949a(b)(2), but
by civilian counsel is included. The
need not include procedural rules
procedural rules may no longer
listed in former §949a(b)(3).
provide that evidence shall be
admissible if the military judge
Pursuant to the above authority, the
determines that it would have
Secretary of Defense published the
“probative value to a reasonable
Manual for Military Commissions
person.”
(M.M.C.), including the Rules for
Military Commissions (R.M.C.) and
10 U.S.C. §949a(b) (as amended).
the Military Commission Rules of
Evidence (Mil. Comm. R. Evid.).
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Jurisdiction over Persons
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
Members of the armed forces,
Any “alien unlawful combatant” is
Any “alien unprivileged enemy
cadets, midshipmen, reservists while
subject to trial by military
belligerent” is subject to trial by
on inactive-duty training, members
commission.
military commission under the MCA.
of the National Guard or Air
(The requirement in the original
National Guard when in federal
Former 10 U.S.C. §948c.
Senate bill that such persons had
service, prisoners of war in custody
An “unlawful enemy combatant” is
engaged in or supported hostilities
of the armed forces, civilian
“a person who has engaged in
against the United States was deleted
employees accompanying the armed
hostilities or who has purposefully
in conference.)
forces in time of declared war or
and materially supported hostilities
contingency operation, and certain
10 U.S.C. §948c.
against the United States or its co-
others, including “persons within an
belligerents who is not a lawful
The term `unprivileged enemy
area leased by or otherwise reserved enemy combatant (including a
belligerent’ is defined to mean “an
or acquired for the use of the United person who is part of the Taliban, Al individual (other than a privileged
States.” As amended by the MCA
Qaeda, or associated forces)”; or a
belligerent) who has engaged in
2009, it includes persons entitled to
person determined to be an unlawful hostilities against the United States
prisoner of war status who violate
enemy combatant by a CSRT or
or its coalition partners; or has
the laws of war, subsection (13) (as
other competent tribunal established purposefully and materially
amended).
under the authority of the President
supported hostilities against the
10 U.S.C. §802.
or the Secretary of Defense, which
United States or its coalition
determination is dispositive of status. partners.... ” It also includes persons
Individuals who are subject to
who were members of Al Qaeda at
military tribunal jurisdiction under
Former 10 U.S.C. §§948a
the time they commit an offense.
the law of war may also be tried by
and 948d(c).
“Privileged belligerent” means an
general court martial.
“Lawful combatant” is defined in
individual who is entitled to
prisoners of war status under one of
10 U.S.C. §818.
terms similar to the definition of
prisoner of war in Art 4 (1-3) of the
the eight categories set forth in
Court-martial jurisdiction for law of
Geneva Convention for the
GPW Art. 4.
war offenses committed by “any
Treatment of Prisoners of War
10 U.S.C. §948a(6-7).
person” (whether or not subject to
(GPW), except that it does not
the UCMJ under 10 U.S.C. §802)
include militias and volunteer forces
The term “coalition partners” has a
does not deprive common law
that form part of the regular armed
definition similar to that of “co-
military commissions under the
forces of a state, although these
belligerents” in the MCA 2006. It
UCMJ of concurrent jurisdiction, but
apparently would be covered if they
applies to states and armed forces
the language preserving military
meet the four conditions set forth in
directly engaged in hostilities along
commission jurisdiction does not
GPW art. 4(2)
with the United States or providing
apply to those conducted under the
direct operational support. to the
MCA.
Former 10 U.S.C. §948a(2).
United States. “Hostilities,”
previously undefined, now refers to
10 U.S.C. §821 (as amended by MCA R.M.C. 201 and 202 provide for
“any conflict subject to the laws of
2006).
jurisdictional requirements of
military commissions in accordance
war.”
with the MCA.
10 U.S.C. §948a.
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Jurisdiction over Offenses
General Courts
Martial
Military Commissions Act of 2006
Military Commissions Act of 2009
Any offenses
A military commission has jurisdiction to try any
A military commission has jurisdiction over
made punishable
offense made punishable by the MCA or the law
persons subject to the MCA for offenses
by the UCMJ;
of war when committed by an alien unlawful
made punishable by the MCA, arts. 104
offenses subject
enemy combatant before, on, or after September
and 106 of the UCMJ, or the law of war.
to trial by military 11, 2001.
Military commissions are expressly
tribunal under
authorized to determine their own
the law of war.
Former 10 U.S.C. §948d(a).
jurisdiction.
10 U.S.C. §818.
Offenses previously codified at 10 U.S.C. §§950q-
10 U.S.C. §948d. (Articles 104 and 106 of
w included the fol owing: murder of protected
the UCMJ, however, state that they do not
persons; attacking civilians, civilian objects, or
apply to military commissions under the
protected property; pil aging; denying quarter;
MCA. 10 U.S.C. §§904 & 906).
taking hostages; employing poison or similar
weapons; using protected persons or property as
MCA offenses remain otherwise
shields; torture, cruel or inhuman treatment;
substantial y unchanged, except that there
intentionally causing serious bodily injury;
is an express requirement that offenses
mutilating or maiming; murder in violation of the
occurred “in the context of and associated
law of war; destruction of property in violation of
with hostilities.”
the law of war; using treachery or perfidy;
improperly using a flag of truce or distinctive
10 U.S.C. §950p.
emblem; intentionally mistreating a dead body;
The definition of “cruel or inhuman
rape; sexual assault or abuse; hijacking or
treatment” is modified to refer to
hazarding a vessel or aircraft; terrorism; providing
treatment that constitutes a grave breach
material support for terrorism; wrongfully aiding
of common Article 3 of the Geneva
the enemy; spying, contempt; perjury and
Conventions, regardless of where the
obstruction of justice.
crime takes place or the nationality of the
Former 10 U.S.C. §950v. Conspiracy
victim. (The previous definition, which was
(§950v(b)(28)), attempts (§950t), and solicitation
codified at 10 U.S.C. §950v(b)(12), referred
(§950u) to commit the defined acts are also
to 18 U.S.C. §2340(2).)
punishable.
10 U.S.C. §950t(12).
Composition
General Courts
Martial
Military Commissions Act of 2006
Military Commissions Act of 2009
A military judge and
A military judge and at least five members,
No changes.
not less than five
unless the death penalty is sought, in which
members, or if
case no fewer than 12 members must be
10 U.S.C. §948m; 10 U.S.C. §949m.
requested, except in included.
capital cases, a
military judge alone.
Former 10 U.S.C. §948m.
10 U.S.C. §816,
Former 10 U.S.C. §949m provided that, in
R.C.M. 501.
death penalty cases where twelve members
were not reasonably available because of
physical conditions or military exigencies, the
convening authority may approve a
commission with as few as 9 members.
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Chart 2. Comparison of Procedural Safeguards
Presumption of Innocence
Military Commissions
General Courts Martial
Military Commissions Act of 2006
Act of 2009
If the defendant fails to enter a
Before a vote is taken on the findings, the
10 U.S.C. §949l and 10
proper plea, a plea of not guilty will
military judge must instruct the commission
U.S.C. §949i are
be entered.
members “that the accused must be
substantial y unchanged.
presumed to be innocent until his guilt is
R.C.M. 910(b).
established by legal and competent evidence
Members of court-martial must be
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
If an accused refuses to enter a plea or pleads
and competent evidence beyond a
guilty but provides inconsistent testimony, or
reasonable doubt.”
if it appears that he lacks proper
understanding of the meaning and effect of the
R.C.M. 920(e).
guilty plea, the commission must treat the plea
The accused shall be properly attired as denying guilt.
in uniform with grade insignia and
10 U.S.C. §949i.
any decorations to which entitled.
Physical restraint shall not be
imposed unless prescribed by the
military judge.
R.C.M. 804.
Right to Remain Silent (Freedom from Coerced Statements)
Military Commissions Act of
The Military Commissions Act
General Courts Martial
2006
of 2009
Coerced confessions or confessions
Sections a, b, and d of Article 31,
10 U.S.C. §948b(d) remains
made in custody without statutory
UCMJ, were expressly made
unchanged.
equivalent of Miranda warning are
inapplicable. These provide that no
not admissible as evidence.
person subject to the UCMJ may
Secretary of Defense may provide
compel any person to incriminate
that confessions allegedly elicited
Art. 31, UCMJ, 10 U.S.C. §831.
himself or interrogate an accused
through coercion or compulsory
self-incrimination that are otherwise
Rules of evidence provide that in
without first informing him of his
admissible are not to be excluded at
most cases “an involuntary
right to remain silent, and that
trial unless their admission violates
statement or any derivative evidence
statements obtained in violation of
Section 948r.
therefrom may not be received in
the above or through other unlawful
evidence against an accused who
inducement may not be received in
10 U.S.C. §949a(b)(3)(B).
made the statement if the accused
evidence against him in a trial by
makes a timely motion to suppress
court-martial.
Section 948r now provides for the
or an objection to the evidence
exclusion of statements elicited
Former 10 U.S.C. §948b(d).
under this rule.”
through torture as well as cruel,
Secretary of Defense permitted to
inhuman, or degrading treatment
Mil. R. Evid. 304.
provide that confessions allegedly
prohibited by Section 1003 of the
DTA (42 U.S.C. §2000dd), regardless
The prosecutor must notify the
elicited through coercion or
of when the statement was made.
defense of any incriminating
compulsory self-incrimination that
statements made by the accused that were otherwise admissible were not
No statement of the accused is
are relevant to the case prior to the
to be excluded at trial except when
admissible at trial unless the military
arraignment. Motions to suppress
admission would violate Section
judge finds that the totality of the
such statements must be made prior
948r.
circumstances renders the statement
to pleading.
reliable and possessing sufficient
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Military Commissions Act of
The Military Commissions Act
General Courts Martial
2006
of 2009
Mil. R. Evid. 304.
Former 10 U.S.C. §949a(b)(2)(C).
probative value and that it was either
made incident to military operations,
Interrogations conducted by foreign
Section 948r provided that
where the interests of justice would
officials do not require warnings or
statements elicited through torture
best be served by admission of the
presence of counsel unless the
may not be entered into evidence
statement into evidence; or that the
interrogation is instigated or
except to prove a charge of torture.
statement was voluntarily given,
conducted by U.S. military
taking into consideration all relevant
personnel.
A statement of the accused obtained
prior to the enactment of the DTA
circumstances, including military and
Mil. R. Evid. 305.
through coercion that does not
intelligence operations during
amount to torture was admissible if
hostilities; the accused’s age,
the military judge found that
education level, military training; and
the change in place or identity of
1. the “totality of circumstances
interrogator between that statement
under which [it] was made
and any prior questioning of the
renders it reliable and
accused.
possessing sufficient probative
value” and
10 U.S.C. §949r.
2. “the interests of justice
Derivative evidence obtained using
would best be served” by
coerced statement is not expressly
admission of the statement.
barred.
Statements taken after passage of the
DTA were admissible if the military
judge also found that
“the interrogation methods
used to obtain [them] do not
violate the cruel, unusual, or
inhumane treatment or
punishment prohibited by the
Fifth, Eighth, and Fourteenth
Amendments to the U.S.
Constitution.”
Former 10 U.S.C. §948r.
Evidence derived from impermissible
interrogation methods was not
expressly barred.
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The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Freedom from Unreasonable Searches and Seizures
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
“Evidence obtained as a result of an
Not provided. Evidence was
The language permitting procedural
unlawful search or seizure ... is
generally permitted if it was judged
rules to permit evidence having
inadmissible against the accused ...”
to have probative value to a
probative value to a reasonable
unless certain exceptions apply.
reasonable person, unless it was
person was omitted.
obtained under circumstances that
Mil. R. Evid. 311.
would render it unreliable.
The Secretary of Defense may
provide that “evidence seized
“Authorization to search” may be
Former 10 U.S.C. §§948r, 949a.
outside the United States shall not
oral or written, and may be issued
be excluded from trial by military
by a military judge or an officer in
Procedural rules may provide that
commission on the grounds that the
command of the area to be
evidence gathered without
evidence was not seized pursuant to
searched, or if the area is not under
authorization or a search warrant
a search warrant or other
military control, with authority over
may be admitted into evidence.
authorization.”
persons subject to military law or
the law of war. It must be based on
Former 10 U.S.C. §949a.
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).
Congressional Research Service
42
The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Effective Assistance of Counsel
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
The defendant has a right to military
At least one qualifying military
At least one qualifying military
counsel at government expense. The
defense counsel is to be detailed “as
defense counsel is to be detailed “as
defendant may choose counsel, if
soon as practicable after the
soon as practicable.”
that attorney is reasonably available,
swearing of charges….”
and may hire a civilian attorney in
10 U.S.C. §948k.
addition to military counsel.
Former 10 U.S.C. §948k.
The accused is entitled to select one
Art. 38, UCMJ, 10 U.S.C. §838.
The accused may also hire a civilian
“reasonably available” military
attorney who
counsel to represent him. The
Appointed counsel must be certified
accused is not entitled to have more
as qualified and may not be someone
1. is a U.S. citizen,
than one military counsel, but
who has taken any part in the
2. is admitted to the bar in any state,
“associate defense counsel” may be
investigation or prosecution, unless
district, or possession,
authorized pursuant to regulations.
explicitly requested by the
defendant.
3. has never been disciplined,
10 U.S.C. §§948c, 948k.
Art. 27, UCMJ, 10 U.S.C. §827.
4. has a SECRET clearance (or
10 U.S.C. §949c, as it relates to the
higher, if necessary for a particular
hiring of civilian counsel, remains
The attorney-client privilege is
case), and
substantial y unchanged.
honored.
5. agrees to comply with all
10 U.S.C. §949b, prohibiting adverse
Mil. R. Evid. 502.
applicable rules.
personnel actions against defense
attorneys due to “the zeal with
Defense counsel must be a member
Former 10 U.S.C. §949c(b)(3).
which such officer, in acting as
of the bar of a federal or state court
counsel, represented any accused
or authorized by a recognized
If civilian counsel is hired, the
before a military commission ...” also
licensing authority to practice law
detailed military counsel serves as
remains unchanged.
who is found by the military judge to
associate counsel.
be qualifed.
Former 10 U.S.C. §949c(b)(5).
In capital cases, the accused is
entitled to be represented, “to the
R.C.M. 502.
No attorney-client privilege is
greatest extent practicable, by at
Once an attorney-client relationship
mentioned.
least one additional counsel who is
has been formed, defense counsel
Adverse personnel actions may not
learned in applicable law,” who may
can withdraw or be excused only at
be taken against defense attorneys
be a civilian and may be
the request of the accused or on
because of the “zeal with which such
compensated by the government in
good cause shown.
officer, in acting as counsel,
accordance with regulations.
R.C.M. 506.
represented any accused before a
10 U.S.C. §949a.
military commission.…”
Former 10 U.S.C. §949b.
Congressional Research Service
43
The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Right to Indictment and Presentment
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
The right to indictment by grand jury UCMJ Article 32 hearings are
No substantial change to relevant
is explicitly excluded in “cases arising expressly made inapplicable.
sections of the MCA 2006.
in the land or naval forces.”
Former 10 U.S.C. §948b(d)(1)(C).
10 U.S.C. §948b(d)(1)(C); 10 U.S.C.
Amendment V.
§948q.
Charges and specifications against an
UCMJ Article 32 provides for an
accused must be signed by a person
inquiry similar to grand jury
subject to UCMJ swearing under
proceedings in federal criminal court. oath that the signer has “personal
knowledge of, or reason to believe,
10 U.S.C. §832.
the matters set forth therein,” and
Whenever an offense is alleged, the
that they are “true in fact to the best
commander is responsible for
of his knowledge and belief.” The
initiating a preliminary inquiry and
accused is to be informed of the
deciding how to dispose of the
charges and specifications against
offense.
him as soon as practicable after
charges are sworn.
R.C.M. 303-06.
Former 10 U.S.C. §948q.
Right to Written Statement of Charges
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
Charges and specifications must be
The trial counsel assigned is
No substantial change to relevant
signed under oath and made known
responsible for serving defense
sections of the MCA 2006.
to the accused as soon as
counsel a copy of the charges upon
practicable.
the accused, in English and, if
10 U.S.C. §948s.
appropriate, in another language that
Art. 30, UCMJ, 10 U.S.C. §830.
the accused understands, “sufficiently
in advance of trial to prepare a
defense.”
Former 10 U.S.C. §948s.
Right to Be Present at Trial
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
The presence of the accused is
The accused has the right to be
No substantial change to relevant
required during arraignment, at the
present at all sessions of the military
sections of the MCA 2006.
plea, and at every stage of the court-
commission except deliberation or
martial unless the accused waives the voting, unless exclusion of the
10 U.S.C. §949a(b)(2)(B); 10 U.S.C.
right by voluntarily absenting him or
accused is permitted under §949d.
§949d(d).
herself from the proceedings after
the arraignment or by persisting in
Former 10 U.S.C. §949a(b)(1)(B).
conduct that justifies the trial judge
The accused may be excluded from
in ordering the removal of the
attending portions of the proceeding
accused from the proceedings.
if the military judge determines that
R.C.M. 804.
the accused persists in disruptive or
dangerous conduct.
Former 10 U.S.C. §949d(e).
Congressional Research Service
44
The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Prohibition Against Ex Post Facto Crimes
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
Courts-martial will not enforce an
Crimes punishable by military
The definition of crimes is contained
ex post facto law, including one that
commissions under the new chapter
in Subchapter VIII. The conspiracy
increases the amount of pay to be
were codified in subchapter VII. It
charge remains available under 10
forfeited for a specific crime.
included the crime of conspiracy,
U.S.C. §950t(29). The charge of
which a plurality of the Supreme
“material support for terrorism,”
U.S. v. Gorki, 47 M.J. 370 (1997).
Court in Hamdan v. Rumsfeld viewed
which the Obama Administration has
as invalid as a charge of war crimes.
believes could raise ex post facto
implications, is now codified at 10
548 U.S. 557 (2006).
U.S.C. §950t(25). The D.C. Circuit
The act declared that it “codif[ies]
has invalidated convictions for these
offenses that have traditionally been
crimes on the basis that they were
triable by military commissions,” and
not war crimes when committed.
that “because the [defined crimes]
Hamdan v. United States, 696 F.3d
(including provisions that
1238 (D.C. Cir. 2012) (Hamdan II).
incorporate definitions in other
provisions of law) are declarative of
10 U.S.C. §950p continues to declare
existing law, they do not preclude
that the MCA as amended does not
trial for crimes that occurred before
define new crimes, but rather
the date of enactment.”
codifies preexisting offenses for trial
by military commission, which
Former 10 U.S.C. §950p.
offenses “have traditionally been
The statute expressly provided
triable under the law of war or
jurisdiction over the defined crimes,
otherwise triable by military
whether committed prior to, on or
commission,” and therefore “does
after September 11, 2001.
not preclude trial for offenses that
occurred before the date of the
Former 10 U.S.C. §948d(a).
enactment.... ”
10 U.S.C. §950p(d).
Congress did not intend for any
offenses that were not violations of
the law of war when committed to
be prosecutable by military
commission.
Hamdan II.
Section 948d continues to provide
for jurisdiction over crimes
committed “prior to, on or after
September 11, 2001,” although the
offense must have been committed
“in the context of and associated
with hostilities.”
10 U.S.C. §948d; 10 U.S.C. §950p.
Congressional Research Service
45
The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Protection Against Double Jeopardy
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
Double jeopardy clause applies.
“No person may, without his
No substantial change in 10 U.S.C.
consent, be tried by a military
§949h.
See Wade v. Hunter, 336 US 684, 688-
commission a second time for
89 (1949).
the same offense.” Jeopardy
The United States may not appeal
any finding of not guilty.
Art. 44, UCMJ prohibits former
attaches when a guilty finding
jeopardy, provides for jeopardy to attach becomes final after review of the
10 U.S.C. §950d(b).
after introduction of evidence, or in
case has been completed. There
cases resulting in a finding of guilty, after
is no indication when jeopardy
Limitations on the convening
review of the case has been completed.
attaches in cases that are
authority’s ability to revise findings
dismissed without any fault of
or order a rehearing are unchanged.
10 U.S.C. §844.
the accused.
10 U.S.C. §950b(d)(2)(B).
General court-martial proceeding is
Former 10 U.S.C. §949h.
considered to be a federal trial for
double jeopardy purposes. Double
The United States may not
jeopardy does not result from charges
appeal an order or ruling that
brought in state or foreign courts,
amounts to a finding of not
although court-martial in such cases is
guilty.
disfavored.
Former 10 U.S.C. §950d(a)(2).
U. S. v. Stokes, 12 M.J. 229 (C.M.A.
The convening authority may not
1982).
revise findings or order a
Once military authorities have turned
rehearing in any case to
service member over to civil authorities
reconsider a finding of not guilty
for trial, military may have waived
of any specification or a ruling
jurisdiction for that crime, although it
which amounts to a finding of
may be possible to charge the individual
not guilty, or reconsider a finding
for another crime arising from the same
of not guilty of any charge, unless
conduct.
there has been a finding of guilty
under a specification laid under
See 54 AM. JUR. 2d, Military and Civil
that charge, which sufficiently
Defense §§227-28.
alleges a violation. The convening
In cases in which a rehearing is ordered,
authority may not increase the
the accused may not be tried for any
severity of the sentence unless
offense of which he was found not guilty, the sentence prescribed for the
and a sentence cannot be increased
offense is mandatory.
unless there is a finding of guilty of an
Former 10 U.S.C. §950b(d)(2)(B).
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.
Congressional Research Service
46
The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Speedy and Public Trial
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
In general, accused must be brought
There is no right to a speedy trial.
No substantial change to relevant
to trial within 120 days of the
Article 10, UCMJ, 10 U.S.C. §810, is
sections of the MCA.
preferral of charges or the
expressly made inapplicable to
imposition of restraint, whichever
military commissions.
10 U.S.C. §948b(d); 10 U.S.C.
date is earliest.
§949b(c).
Former 10 U.S.C. §948b(d).
R.C.M. 707(a).
The military judge may close all or
The right to a public trial applies in
part of a trial to the public only after
courts-martial but is not absolute.
making a determination that such
closure is necessary to protect
R.C.M. 806.
information, the disclosure of which
The military trial judge may exclude
would be harmful to national
the public from portions of a
security interests or to the physical
proceeding for the purpose of
safety of any participant.
protecting classified information if
Former 10 U.S.C. §949d(d).
the prosecution 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).
Congressional Research Service
47
The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Burden and Standard of Proof
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
Members of court martial must be
Commission members are to be
Instructions for commission
instructed that the burden of proof
instructed that the accused is
members on the burden of and
to establish guilt is upon the
presumed to be innocent until his
standard of proof are unchanged.
government and that any reasonable
“guilt is established by legal and
doubt must be resolved in favor of
competent evidence beyond
10 U.S.C. §949l.
the defendant.
reasonable doubt”; that any
Two-thirds of the members must
reasonable doubt as to the guilt of
R.C.M. 920(e).
concur on a finding of guilty, except
the accused must result in acquittal;
in capital cases.
that reasonable doubt as to the
degree of guilt must be resolved in
10 U.S.C. §949m.
favor of the lower degree as to
The provision for the exclusion of
which there is no reasonable doubt;
irrelevant, cumulative, or prejudicial
and that the burden of proof is on
evidence is expressly made a right of
the government.
the accused rather than an optional
Former 10 U.S.C. §949l.
rule subject to the discretion of the
Secretary of Defense.
Two-thirds of the members must
concur on a finding of guilty, except
10 U.S.C. §949a(b)(2)(E-F).
in capital cases. (The death penalty
requires a unanimous finding as to
guilt as well as sentence).
Former 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 substantially
outweighed by the danger of unfair
prejudice, confusion of the issues, or
misleading the members of the
commission, or by considerations of
undue delay, waste of time, or
needless presentation of cumulative
evidence.
Former 10 U.S.C. §949a.
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48
The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Privilege Against Self-Incrimination
(Freedom from Compelled Testimony)
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
No person subject to the UCMJ may
“No person shal be required to
No substantial change in relevant
compel any person to answer
testify against himself at a
sections of the MCA 2006.
incriminating questions.
commission proceeding.”
10 U.S.C. §948r(b); 10 U.S.C.
Art. 31(a) UCMJ, 10 U.S.C. §831(a).
Former 10 U.S.C. §948r(a).
§948b(d)(1)(B), 10 U.S.C. §949l(c).
Defendant may not be compel ed to
While most of Art. 31, UCMJ,
give testimony that is immaterial or
relating to compelled self-
potentially degrading.
incrimination, is declared
inapplicable, Art. 31(c), UCMJ,
Art. 31(c), UCMJ, 10 U.S.C. §831(c).
related to immaterial or degrading
No adverse inference is to be drawn
statements or evidence, applies to all
from a defendant’s refusal to answer
military tribunals.
any questions or testify at court-
Former 10 U.S.C. §948b(d)(1)(B).
martial.
Adverse inferences drawn from a
Mil. R. Evid. 301(f).
failure to testify are not expressly
Witnesses may not be compelled to
prohibited; however, members are
give testimony that may be
to be instructed that “the accused
incriminating unless granted
must be presumed to be innocent
immunity for that testimony by a
until his guilt is established by legal
general court-martial convening
and competent evidence.”
authority, as authorized by the
10 U.S.C. §949l(c).
Attorney General, if required.
There does not appear to be a
18 U.S.C. §6002; R.C.M. 704.
provision for immunity of witnesses,
although 18 U.S.C. §6002 appears to
apply.
Right to Examine or Have Examined Adverse Witnesses
(Hearsay and Classified Evidence)
Military Commissions Act of
General Courts Martial
2006
Military Commissions Act of 2009
Rules of Evidence prohibit
“Defense counsel may cross-
The right to cross-examine witnesses
generally the introduction at trial
examine each witness for the
remains unchanged.
of statements made out of court to prosecution who testifies before
prove the truth of the matter
the commission.”
10 U.S.C. §949c(b)(6).
stated unless the declarant is
The Secretary of Defense is permitted
available for cross-examination at
Former 10 U.S.C. §949c(b)(7).
to provide that hearsay evidence that
trial (hearsay rule).
The Secretary of Defense had the
would not be admissible at a general
Mil. R. Evid. 801 et seq.
authority to establish that hearsay
court-martial is admissible if adequate
evidence not admissible under the
notice is given and the military judge
Exceptions exist for cases in which
rules of evidence applicable in trial
determines that the statement is reliable
the statement may be presumed to
by general courts-martial is
and is offered as evidence of a material
be reliable due to specific
admissible only if the proponent
fact, that direct testimony from the
circumstances (Rule 803) or the
notifies the adverse party
witness is not available or would have
witness is unavailable in court (Rule sufficiently in advance of its
an adverse impact on military or
804). There is also a “residual
intention to offer the evidence and
intelligence operations, and that the
exception” (Rule 807), which
the particulars of the evidence
general purposes of the rules of
covers statements not covered
(including information on the
evidence and the interests of justice will
under other rules but having
general circumstances under which
best be served by admission of the
Congressional Research Service
49
The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Military Commissions Act of
General Courts Martial
2006
Military Commissions Act of 2009
similar indicia of trustworthiness.
the evidence was obtained), unless
statement into evidence. In determining
Such statements are admissible if
the party opposing the admission
reliability, the military judge may be
notice is provided to the adverse
of the evidence “clearly
obligated to consider the degree to
party sufficient to provide a fair
demonstrates that the evidence is
which the statement is corroborated,
opportunity to prepare to rebut it,
unreliable or lacking in probative
the indicia of reliability within the
and if the military judge determines value.”
statement itself, and whether the will of
the statement is more probative of
the declarant was overborne,
the material fact for which it is
Former 10 U.S.C. §949a(b)(2)(E).
offered than other reasonably
10 U.S.C. §949a(b)(3)(D).
In the case of classified information,
available evidence and that its
the military judge could authorize
The burden of persuasion to
admission would serve the
the government to delete specified
demonstrate unreliability or lack of
interests of justice.
portions of evidence to be made
probative value appears to be on the
Mil. R. Evid. 801 et seq.
available to the accused, or allow
profferer of the evidence. (Language
an unclassified summary or
providing otherwise was repealed.)
In capital cases, sworn depositions
statement setting forth the facts
may not be used in lieu of witness,
the evidence would tend to prove,
The protection of classified information
unless court-martial is treated as
to the extent practicable in
is governed by subchapter V, 10 U.S.C.
non-capital or it is introduced by
accordance with the rules used at
§§949p-1–949p-7. Subchapter V
the defense.
general courts-martial.
provides that the government cannot be
compelled to disclose classified
Art. 49, UCMJ, 10 U.S.C. §849.
Former 10 U.S.C. §949d(f)(2)(A).
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 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.
Congressional Research Service
50
The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Right to Compulsory Process to Obtain Witnesses and
Other Evidence (Discovery)
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
Defendants before court-martial
Defense counsel is to be afforded a
Defense counsel is to be afforded a
have the right to compel appearance
reasonable opportunity to obtain
reasonable opportunity to obtain
of witnesses necessary to their
witnesses and other evidence,
witnesses and other evidence,
defense.
including evidence in the possession
including evidence in the possession
of the United States, according to
of the United States, in a manner
R.C.M. 703.
DOD regulations.
comparable to the opportunity
Process to compel witnesses in
available to a criminal defendant in
Former 10 U.S.C. §949j(a).
court-martial cases is to be similar to
federal court. As previously, the
the process used in federal courts.
The military commission is
military commission is authorized to
Moreover, the defense and
authorized to compel witnesses
compel witnesses under U.S.
prosecution “shal have equal
under U.S. jurisdiction to appear.
jurisdiction to appear. This may
opportunity to obtain witnesses and
include the authority to grant
other evidence.”
Former 10 U.S.C. §949j(b).
immunity to witnesses whose
testimony is self-incriminatory.
Art. 46, UCMJ, 10 U.S.C. §846.
The trial counsel is obligated to
disclose exculpatory evidence of
10 U.S.C.§949j(a)(as amended).
In the case of a witness who is not
which he is aware to the defense,
available to testify, but whose
but such information, if classified, is
Congress emphasized its sense that
testimony is essential to a fair trial,
available to the accused only in a
“the fairness and effectiveness of the
and no adequate substitution for the
redacted or summary form, and only
military commissions system under
testimony can be provided, the judge if making the information available is
chapter 47A of title 10 ... will depend
must grant appropriate relief, unless
possible without compromising
to a significant degree on the
the unavailability of the witness is the intelligence sources, methods, or
adequacy of defense counsel and
fault of the requesting party.
activities, or other national security
associated resources for individuals
interests.
accused, particularly in the case of
R.C.M. 703.
capital cases,” and that “defense
Former 10 U.S.C. §949j(d).
There is authority to grant immunity
counsel in military commission cases,
to witnesses in order to compel
The military judge may authorize
particularly in capital cases, ... should
testimony that may incriminate the
discovery in accordance with rules
be fully resourced as provided.... ”
witness.
prescribed by the Secretary of
FY2010 NDAA, §1807.
Defense to redact classified
18 U.S.C. §6002; R.C.M. 704.
information or to provide an
The obligation to disclose
The prosecution is required to
unclassified summary or statement
exculpatory information is expanded
disclose any sworn statements that
describing the evidence.
to include mitigating evidence, and
are material to the case. The
the obligation extends beyond
Former 10 U.S.C. §949j(c).
government must also provide
information known to the trial
results or reports of any physical or
counsel to include all information
mental examination of the defendant.
that is known or reasonably should
be known to any government
Upon the request of the accused, the
officials who participated in the
government must permit the
investigation and prosecution of the
accused to inspect and make copies
case against the defendant. The
or photos of tangible objects,
military judge may authorize trial
buildings or places, within the
counsel to disclose such information
control of military authorities if
in a redacted or summary form, and
(i) the item is material to preparing
shall authorize such alternative forms
the defense;
evidence when consistent with the
interests of justice.
(ii) the government intends to use
the item in its case-in-chief at trial;
10 U.S.C. §949j(b).
or
The provisions regarding the
(ii ) the item was obtained from or
production of classified information
belongs to the defendant.
are removed from §949(d) and
revised provisions inserted in
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Military Commissions Act of
General Courts Martial
2006
2009
Trial counsel (the prosecution) must
subchapter V, which is to be
give notice of any witnesses it
construed consistent with the
intends to call at trial. Exculpatory or
Classified Information Procedures
mitigating evidence known to trial
Act (18 U.S.C. App.) to the extent
counsel must also be disclosed.
that such a construction does not
conflict with the revised provisions.
R.C.M. 701.
10 U.S.C. §949p-1.
Either party can request approval for
expert testimony from the
The military judge is to issue a
convening authority, whose denial
protection order to prevent the
can be overridden by the military
disclosure of any classified
judge on a finding that such
information that has been disclosed
testimony is necessary and relevant.
or otherwise obtained by the
accused.
R.C.M. 703(d).
10 U.S.C. §949p-3.
Discovery involving classified
information is governed by Mil. R.
Evid. 505.
Right to Trial by Impartial Judge
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
A qualified military judge is detailed
Military judges must take an oath to
No substantial change from relevant
to preside over the court-martial.
perform their duties faithfully.
sections of the MCA 2006.
The convening authority may not
prepare or review any report
Former 10 U.S.C. §949g.
10 U.S.C. §949g; 10 U.S.C. §948j(f);
concerning the performance or
10 U.S.C. §948j(c); 10 U.S.C.
The convening authority is
effectiveness of the military judge.
§948j(d); 10 U.S.C. §949b; 10 U.S.C.
prohibited from preparing or
§949f.
Art. 26, UCMJ, 10 U.S.C. §826.
reviewing any report concerning the
effectiveness, fitness, or efficiency of
UCMJ Article 37 prohibits unlawful
a military judge.
influence of courts-martial through
admonishment, censure, or
Former 10 U.S.C. §948j(a).
reprimand of its members by the
A military judge may not be assigned
convening authority or commanding
to a case in which he is the accuser,
officer, or any unlawful attempt by a
an investigator, a witness, or a
person subject to the UCMJ to
counsel.
coerce or influence the action of a
court-martial or convening authority. Former 10 U.S.C. §948j(c).
Art. 37, UCMJ, 10 U.S.C. §837.
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.
Former 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.
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Military Commissions Act of
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2006
2009
Former 10 U.S.C. §949b.
The military judge may be challenged
for cause.
Former 10 U.S.C. §949f.
Right to Trial by Impartial Jury
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
A military accused has no Sixth
Military commission members must
No substantial change from relevant
Amendment right to a trial by petit
take an oath to perform their duties
sections of the MCA 2006.
jury.
faithfully.
10 U.S.C. §949g; 10 U.S.C. §949f; 10
Ex Parte Quirin, 317 U.S. 1, 39-40
Former 10 U.S.C. §949g.
U.S.C. §949b.
(1942) (dicta).
The accused may make one
However, “Congress has provided
peremptory challenge, and may
for trial by members at a court-
challenge other members for cause.
martial.”
Former 10 U.S.C. §949f.
United States v. Witham, 47 M.J.
297, 301 (1997); Art. 25, UCMJ, 10
No convening authority may
U.S.C. §825.
censure, reprimand, or admonish the
commission or any member with
The Sixth Amendment requirement
respect to the findings or sentence
that the jury be impartial applies to
or the exercise of any other
court-martial members and covers
functions in the conduct of the
not only the selection of individual
proceedings. No person may
jurors, but also their conduct during
attempt to coerce or, by any
the trial proceedings and the
unauthorized means, influence the
subsequent deliberations.
action of a commission or any
member thereof, in reaching the
United States v. Lambert, 55 M.J. 293 findings or sentence in any case.
(2001).
Military commission duties may not
The absence of a right to trial by jury be considered in the preparation of
precludes criminal trial of civilians by
an effectiveness report or any similar
court-martial.
document with potential impact on
career-advancement.
Reid v. Covert, 354 U.S. 1 (1957);
Kinsella v. United States ex rel.
Former 10 U.S.C. §949b.
Singleton, 361 U.S. 234 (1960).
Right to Appeal to Independent Reviewing Authority
Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
The accused may submit matters
The accused may submit matters for
No change in 10 U.S.C. §950b.
concerning the findings and the
consideration by the convening
sentence for consideration by the
authority with respect to the
The accused may appeal a final
convening authority. The convening
authenticated findings or sentence of
decision of the military commission
authority may approve, disapprove,
the military commission. The
with respect to any properly raised
commute, or suspend the sentence
convening authority must review
issue to the United States Court of
in whole or in part, set aside a
timely submissions prior to taking
Military Commission Review
finding of guilty or change a finding of action.
(USCMCR), a body composed of
guilty to a charge or specification to
judges who meet the same
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Military Commissions Act of
Military Commissions Act of
General Courts Martial
2006
2009
a finding of guilty to an offense that is Former 10 U.S.C. §950b.
qualifications as military judges or
a lesser included offense of the
comparable qualifications for civilian
offense stated in the charge or
The accused may appeal a final
judges. The Secretary of Defense
specification.
decision of the military commission
may appoint persons already serving
with respect to issues of law to the
as appellate military judges to the
Art. 60, UCMJ, 10 U.S.C. §860.
Court of Military Commission
CMCR, or the President may
Certain judgments of courts-martial,
Review, a body composed of
appoint judges subject to Senate
depending on the severity of the
appellate military judges who meet
advice and consent.
sentence, are directly appealable to
the same qualifications as military
10 U.S.C. §950f.
the respective Service’s Court of
judges or comparable qualifications
Criminal Appeals, which reviews the
for civilian judges.
Once these appeals are exhausted,
findings and sentence as approved by
Former 10 U.S.C. §950f.
the accused may appeal the final
the convening authority, considering
decision to the United States Court
questions of both fact and law. In the Once these appeals are exhausted,
of Appeals for the District of
event it sets aside a judgment, it may
the accused may appeal the final
Columbia Circuit, with respect to
order a rehearing unless its act was
decision to the United States Court
the findings and sentence as
based on insufficiency of evidence in
of Appeals for the District of
approved by the convening authority
the record to support the findings, in Columbia Circuit, which is limited to
and as affirmed or set aside as
which case it must order a dismissal.
reviewing questions of law regarding
incorrect in law by the USCMCR.
“whether the final decision was
The appel ate court may take action
Art. 66, UCMJ, 10 U.S.C. §866.
consistent with the standards and
only with respect to matters of law,
The accused may petition for review
procedures specified in [the MCA]
including the sufficiency of the
of a Court of Criminal Appeals
and to the extent applicable, the
evidence to support the verdict.
decision to the Court of Appeals for
Constitution and the laws of the
D.C. Cir. appel ate decisions may be
the Armed Forces, a court of civilian
United States.” D.C. Cir. appellate
reviewed by the Supreme Court
judges that is empowered to act only decisions may be reviewed by the
under writ of certiorari.
with respect to matters of law.
Supreme Court under writ of
certiorari.
10 U.S.C. §950g.
Art. 67, UCMJ, 10 U.S.C. §867.
Former 10 U.S.C. §950g.
Other review by a civilian court,
CAAF decisions, other than denials
including review on petition of
to hear a case, may be appealed to
Other review by a civilian court,
habeas corpus, is no longer expressly
the Supreme Court through writ of
including review on petition of
prohibited.
certiorari.
habeas corpus, is expressly
prohibited.
Art. 67a, UCMJ, 10 U.S.C. §867a.
Former 10 U.S.C. §950j (likely
The writ of habeas corpus provides
unconstitutional under Boumediene
the primary means by which those
v. Bush, 533 U.S. 723 (2008)(holding
sentenced by military court, having
§7 of the MCA to be invalid
exhausted military appeals, can
suspension of the writ of habeas
challenge a conviction or sentence in
corpus)).
a civilian court. The scope of matters
that a court will address is narrower
than in challenges of federal or state
convictions.
Burns v. Wilson, 346 U.S. 137
(1953).
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Protection Against Excessive Penalties
Military Commissions Act of
General Courts Martial
Military Commissions Act of 2006
2009
Death may only be adjudged for
Military commissions may adjudge “any
Few substantial changes from
certain crimes where the
punishment not forbidden by [the MCA] or MCA 2006.
defendant is found guilty by
the law of war, including the penalty of
unanimous vote of court-martial
death….”
10 U.S.C. §949m; 10 U.S.C.
members present at the time of
§950i.
the vote. Prior to arraignment,
Former 10 U.S.C. §948d.
In capital cases, the accused is
the trial counsel must give the
A vote of two-thirds of the members
entitled to assistance of counsel
defense written notice of
present is required for sentences of up to
with expertise in death penalty
aggravating factors the
10 years. Longer sentences require the
cases, which may include civilian
prosecution intends to prove.
concurrence of three-fourths of the
counsel paid for by the
R.C.M. 1004.
members present. The death penalty must
government.
be approved unanimously on a unanimous
A conviction of spying during time guilty verdict. Where the death penalty is
10 U.S.C. §949a.
of war under UMCJ Article 106
sought, a panel of 12 members is required
In the case of a capital case in
carries a mandatory death
(unless not “reasonably available,” in which
which the accused pleads guilty,
penalty.
case the minimum is nine members). The
the sentence must be approved
death penalty must be expressly authorized
10 U.S.C. §906.
unanimously by members
for the offense, and the charges must have
present.
Cruel and unusual punishments
expressly sought the penalty of death.
are prohibited.
10 U.S.C. §949m.
Former 10 U.S.C. §949m.
Art. 55, UCMJ, 10 U.S.C. §855.
An accused who is sentenced to
An accused who is sentenced to death may
death may neither waive nor
In capital cases, “equal
waive his appeal, but may not withdraw an
withdraw an appeal.
opportunity to obtain witnesses
appeal.
and other evidence” under Art.
10 U.S.C. §950c.
Former 10 U.S.C. §950c.
46, UCMJ may entitle the accused
to expert assistance at the
The death sentence may not be executed
Government’s expense.
until the commission proceedings have
been finally adjudged lawful and the time
United States v. Kreutzer, 61 M.J.
for filing a writ has expired or the writ has
293 (CAAF 2005).
been denied; and the President approves
If a sentence extends to death,
the sentence.
dismissal, or a dishonorable or
Former 10 U.S.C. §950i.
bad conduct discharge, that part
of the sentence may not be
In capital cases, the accused is not entitled
executed until required approval
to assistance of counsel with expertise in
is given and all appeals are
death penalty cases.
exhausted or waived.
Former 10 U.S.C. §949a (civilian counsel
Art. 71, UCMJ, 10 U.S.C. §871.
only authorized if provided at no expense
of the government).
Author Contact Information
Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
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