The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice

The Department of Defense Rules for Military
Commissions: Analysis of Procedural Rules and
Comparison with Proposed Legislation and the
Uniform Code of Military Justice
Updated September 25, 2006
Jennifer K. Elsea
Legislative Attorney
American Law Division

The Department of Defense Rules for Military
Commissions: Analysis of Procedural Rules and
Comparison with Proposed Legislation and the Uniform
Code of Military Justice
Summary
November 13, 2001, President Bush issued a Military Order (M.O.) pertaining
to the detention, treatment, and trial of certain non-citizens in the war against
terrorism. Military commissions pursuant to the M.O. began in November, 2004,
against four persons declared eligible for trial, but proceedings were suspended after
a federal district court found one of the defendants could not be tried under the rules
established by the Department of Defense. The D.C. Circuit Court of Appeals
reversed that decision, Rumsfeld v. Hamdan, but the Supreme Court granted review
and reversed the decision of the Court of Appeals. Military commissions will not be
able to go forward until the Department of Defense revises its rules to conform with
the Supreme Court’s Hamdan opinion or Congress approves legislation conferring
authority to promulgate rules that depart from the strictures of the Uniform Code of
Military Justice (UCMJ) and U.S. international obligations.
The M.O. has been the focus of intense debate both at home and abroad. Critics
argued that the tribunals could violate the rights of the accused under the Constitution
as well as international law, thereby undercutting the legitimacy of any verdicts
rendered by the tribunals. The Administration responded by publishing a series of
military orders and instructions clarifying some of the details. The procedural
aspects of the trials were published in Military Commission Order No. 1 (“M.C.O.
No. 1”). The Department of Defense also released two more orders and nine
“Military Commission Instructions,” which set forth the elements of some crimes that
may be tried, establish guidelines for civilian attorneys, and provide other
administrative guidance. These rules were praised as a significant improvement over
what might have been permitted under the M.O., but some argued that the
enhancements do not go far enough, and the Supreme Court held that the amended
rules did not comply with the UCMJ.
This report provides a background and analysis comparing military commissions
as envisioned under M.C.O. No. 1 to general military courts-martial conducted under
the UCMJ. A summary of the Hamdan case follows, in particular the shortcomings
identified by the Supreme Court. The report provides an overview of legislation
(H.R. 6054, S. 3901, S. 3930, S. 3861, and S. 3886). Finally, the report provides two
charts to compare the regulations issued by the Department of Defense to standard
procedures for general courts-martial under the Manual for Courts-Martial and to
proposed legislation. The second chart, which compares procedural safeguards
incorporated in the regulations with established procedures in courts-martial, follows
the same order and format used in CRS Report RL31262, Selected Procedural
Safeguards in Federal, Military, and International Courts, in order to facilitate
comparison with safeguards provided in federal court and international criminal
tribunals.

Contents
In troduction ..................................................1
Military Commissions: General Background....................2
Military Commissions at Guantánamo Bay......................2
Hamdan v. Rumsfeld...........................................5
Department of Defense Rules for Military Commissions..............10
Jurisdiction ..............................................11
Composition and Powers...................................18
Procedures Accorded the Accused............................19
Sentencing ..............................................27
Post-Trial Procedure......................................28
Military Commission Legislation................................31
Personal Jurisdiction......................................32
Subject Matter Jurisdiction.................................33
Evidentiary Rules.........................................34
Post-Trial Procedure and Interlocutory Appeals.................38
List of Tables
Table 1. Comparison of Courts-Martial and Military Commission Rules.....40
Table 2. Comparison of Procedural Safeguards.........................48

The Department of Defense Rules for
Military Commissions: Analysis of
Procedural Rules and Comparison with
Proposed Legislation and the Uniform Code
of Military Justice
Introduction
Rasul v. Bush, issued by the U.S. Supreme Court at the end of its 2003-2004
term, clarified that U.S. courts do have jurisdiction to hear petitions for habeas corpus
on behalf of the approximately 550 persons detained at the U.S. Naval Station in
Guantanamo Bay, Cuba, in connection with the war against terrorism,¹ establishing
a role for federal courts to play in determining the validity of the military
commissions convened pursuant to President Bush’s Military Order (M.O.) of
November 13, 2001.² After dozens of petitions for habeas corpus were filed in the
federal District Court for the District of Columbia, Congress passed the Detainee
Treatment Act of 2005 (DTA),³ revoking federal court jurisdiction over habeas
claims, at least with respect to those not already pending, and created jurisdiction in
the Court of Appeals for the District of Columbia Circuit to hear appeals of final
decisions of military commissions. The Supreme Court overturned a decision by the
D.C. Circuit that had upheld the military commissions, Hamdan v. Rumsfeld,⁴
holding instead that although Congress has authorized the use of military

¹ Rasul v. Bush, 124 S. Ct. 2686 (2004). For a summary of Rasul and related cases, see CRS
Report RS21884, The Supreme Court and Detainees in the War on Terrorism: Summary and
Analysis of Recent Decisions; CRS Report RS22466, Hamdan v. Rumsfeld: Military
Commissions in the ‘Global War on Terrorism,’ by Jennifer K. Elsea.
² Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
§1(a), 66 Fed. Reg. 57,833 (Nov. 16, 2001) (hereinafter “M.O.”).
³ P.L. 109-148, §1005(e)(1) amends 28 U.S.C. § 2441 to provide that “no court … shall have
jurisdiction to hear or consider … an application for … habeas corpus filed by … an alien
detained … at Guantanamo Bay.” However, it creates new, albeit limited, jurisdiction in the
D.C. Cir. to hear challenges of “any final decision of a Combatant Status Review Tribunal
that an alien is properly detained as an enemy combatant” as well as reviews of “final
decisions of military commissions,” which are discretionary unless the sentence is greater
than ten years or involves the death penalty. DTA § 1005(e)(2-3).
⁴ Hamdan v. Rumsfeld, ^{548 U}^.^S^.^{__ (2006),} rev’g 415 F.3d 33 (D.C. Cir. 2005). The Court
found that the DTA does not apply to Hamdan’s petition, which was an appeal of an
interlocutory ruling rather than the final decision of a military commission, but did not
resolve whether it affects other pending cases that fall under the DTA’s provisions regarding
final review of Combatant Status Review Tribunals. Slip op. at 19, and n.14.

commissions, such commissions must follow procedural rules as similar as possible
to courts-martial proceedings, in compliance with the Uniform Code of Military
Justice (UCMJ).⁵
Military Commissions: General Background. Military commissions are
courts usually set up by military commanders in the field to try persons accused of⁶
certain offenses during war. They are distinct from military courts-martial, which
are panels set up to try U.S. service members (and during declared wars, civilians
accompanying the armed forces) under procedures prescribed by Congress in the
UCMJ. U.S. service members charged with a war crime are normally tried before
courts-martial but may also be tried by military commission or in federal court,
depending on the nature of the crime charged.⁷ All three options are also available
to try certain other persons for war crimes. Federal and state criminal statutes and
courts are available to prosecute specific criminal acts related to terrorism that may
or may not be triable by military commission.
Military commissions trying enemy belligerents for war crimes directly apply
the international law of war, without recourse to domestic criminal statutes, unless⁸
such statutes are declaratory of international law. Historically, military commissions
have applied the same set of procedural rules that applied in courts-martial.⁹
Military Commissions at Guantánamo Bay. The President’s Military
Order establishing military commissions to try suspected terrorists has been the focus
of intense debate both at home and abroad. Critics argued that the tribunals could
violate any rights the accused may have under the Constitution as well as their rights
under international law, thereby undercutting the legitimacy of any verdicts rendered
by the tribunals. The Administration initially responded that the M.O. provided only
the minimum requirements for a full and fair trial, and that the Secretary of Defense
intended to establish rules prescribing detailed procedural safeguards for tribunals
established pursuant to the M.O. The procedural rules released in March 2002 were
praised as a significant improvement over what might have been permitted under the
language of the M.O., but some continued to argue that the enhancements do not go
far enough and that the checks and balances of a separate rule-making authority and

⁵ 10 U.S.C. § 801 et seq.
⁶ See CRS Report RL31191, Terrorism and the Law of War: Trying Terrorists as War
Criminals before Military Commissions (providing a general background of U.S. history of
military commissions), by Jennifer Elsea.
⁷ See 10 U.S.C. § 818; 18 U.S.C. §2441.
⁸ See U.S. Army Field Manual (FM) 27-10, The Law of Land Warfare, section 505(e)
[hereinafter “FM 27-10”].
⁹ See W^I^LLI^AMW^IN^T^H^R^O^P,M^IL^IT^A^R^YL^AW^ANDP^RECEDENTS 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,^st
Note, Kangaroo Court or Competent Tribunal?: Judging the 21 Century Military
Commission, 89 V^A.L.R^EV. 2005 (2003).

an independent appellate process are necessary.¹⁰ The release of the Military
Commission Instructions sparked renewed debate, especially concerning the
restrictions on civilian attorneys,¹¹ resulting in further modifications to the rules.
Critics noted that the rules do not address the issue of indefinite detention without
charge, as appears to be possible under the original M.O.,¹² or that the Department
of Defense may continue to detain persons who have been cleared by a military
commission.¹³ The Pentagon has stated that its Inspector General (IG) looked into
allegations, made by military lawyers assigned as prosecutors to the military
commissions, that the proceedings are rigged to obtain convictions, but the IG did not
substantiate the charges.¹⁴
The Department of Defense (DOD) has released ten “Military Commission
Instructions” (“M.C.I. No. 1-10”)¹⁵ to elaborate on the set of procedural rules to
govern military tribunals. Those rules are set forth in Military Commission Order
No. 1 (“M.C.O. No. 1”), issued in March 2002 and amended in 2005.¹⁶ The
instructions set forth the elements of some crimes that may be tried by military
commission, establish guidelines for civilian attorneys, and provide other
administrative guidance and procedures for military commissions. Additionally,
Major General John D. Altenburg, Jr. (retired), the Appointing Authority for the
commissions, issued several Appointing Authority Regulations, governing disclosure
of communications, interlocutory motions, and professional responsibility.

¹⁰ See Letter from Timothy H. Edgar, ACLU Legislative Counsel, Military Commission
Order No. 1, March 21, 2002 (April 16, 2002), available at [http://www.aclu.org/National
Security/NationalSecurity.cfm?ID=10150&c=111] (last visited July 21, 2006); American
College of Trial Lawyers, Report on Military Commissions for the Trial of Terrorists,
March 2003 [hereinafter “ACTL”], available at [http://www.actl.com/AM/Template.cfm
?Section=All_Publications&Template=/CM/ContentDisplay.cfm&ContentFileID=63] (last
visited July 21, 2006); ACTL, Supplemental Report on Military Commissions for the Trial
of Terrorists, Oct. 2005, online at [http://www.actl.com/AM/Template.cfm?Section=Home
&template=/CM/ContentDisplay.cfm&ContentID=2152] (last visited July 21, 2006).
¹¹ The president of the National Association of Criminal Defense Lawyers (NACDL)
announced that NACDL “cannot advise its members to act as civilian counsel” because it
deems the rules too restrictive to allow for zealous and professional representation on their
part. See Lawrence Goldman, Guantanamo: Little Hope for Zealous Advocacy, NACDL
C^HAM^P^I^ON, July 2003, at 4, available at [http://www.nacdl.org/public.nsf/Champion
Articles/A0307p04?OpenDocument] (last visited July 21, 2006).
¹² The Administration has not explicitly used this authority; instead, it says the prisoners are
being held as “enemy combatants” pursuant to the law of war.
¹³ See Bruce Zagaris, U.S. Defense Department Issues Order on Military Commissions, 18
No. 5 I^NT’^LE^NFORCEM^E^NTL.R^EP 215 (2002) (citing comments by DOD chief counsel
William J. Haynes II to a New York Times reporter).
¹⁴ See Neil A. Lewis, Two Prosecutors Faulted Trials For Detainees, N^EWY^ORKT^IME^S,
August 1, 2005, at A1.
¹⁵ Department of Defense (“DOD”) documents related to military commissions are available
online at [http://www.defenselink.mil/news/commissions.html] (last visited July 24, 2006).
¹⁶ Reprinted at 41 I.L.M. 725 (2002). The most recent version was issued Aug. 31, 2005.

In August 2005, DOD amended M.C.O. No. 1 to make the presiding officer
function more like a judge and to have other panel members function more like a
jury. Under the new rules, the presiding officer was assigned the responsibility of
determining most questions of law while the other panel members were to make
factual findings and decide any sentence, similar to courts-martial proceedings.
Other provisions were modified to clarify the accused’s privilege to be present except
when necessary to protect classified information and only in instances where the
presiding officer concludes that the admission of such evidence would not prejudice
a fair trial and to require that the presiding officer exclude any evidence that would
result in the denial of a full and fair trial from lack of access to the information.¹⁷
President Bush determined that twenty of the detainees at the U.S. Naval Station
in Guantánamo Bay are subject to the M.O. and may consequently be charged and
tried before military commissions.¹⁸ Six detainees declared eligible in 2003 included
two citizens of the U.K. and one Australian citizen.¹⁹ After holding discussions with
the British and Australian governments regarding the trial of their citizens, the
Administration agreed that none of those three detainees will be subject to the death
penalty.²⁰ The Administration agreed to modify some of the rules with respect to
trials of Australian detainees²¹ and agreed to return the U.K. citizens, including the
two who had been declared eligible for trial by military commission, to Great
Britain.²² The Administration agreed to return one Australian citizen, but another,
David Hicks has been charged with conspiracy to commit war crimes; attempted

¹⁷ See Press Release, Department of Defense, Secretary Rumsfeld Approves Changes to
Improve Military Commission Procedures (Aug. 31, 2005), available at
[http://www.defenselink.mil/releases/2005/nr20050831-4608.html] (last visited July 21,

2006).

¹⁸ See Press Release, Department of Defense, President Determines Enemy Combatants
Subject to His Military Order (July 3, 2003), available at [http://www.defenselink.mil/
releases/2003/nr20030703-0173.html] (last visited July 21, 2006). According to the Defense
Department, that determination is effectively “a grant of [military] jurisdiction over the
person.” See John Mintz, 6 Could Be Facing Military Tribunals, W^ASH.P^OST, July 4, 2003,
at A1. In 2004, nine additional detainees were determined to be eligible. See Press Release,
Department of Defense, Presidential Military Order Applied to Nine more Combatants (July

7, 2004), available at [http://www.defenselink.mil/releases/2004/nr20040707-0987.html]

(last visited July 21, 2006). In November 2005, five more detainees were charged. See Press
Release, Department of Defense, Military Commission Charges Approved (November 7,
2005), available at [http://www.defenselink.mil/releases/2005/nr20051107-5078.html] (last
visited July 21, 2006).
¹⁹ See John Mintz and Glenn Frankel, 2 Britons, Australian Among Six Facing Trial, W^ASH.
P^OST, July 5, 2003, at A13.
²⁰ See Press Releases, Department of Defense, Statement on British Detainee Meetings and
Statement on Australian Detainee Meetings (July 23, 2003), available at
[http://www.defenselink.mil/news/Aug2004/ commissions_releases.html] (last visited July

21, 2006).

²¹ See Press Release, Department of Defense, U.S. and Australia Announce Agreements on
Guantanamo Detainees (Nov. 25, 2003), available at [http://www.defenselink.mil/releases/

2003/nr20031125-0702.html] (last visited July 21, 2006).

²² See Ed Johnson, British Guantanamo Detainees to Be Freed, AP, Jan. 11, 2005.

murder by an unprivileged belligerent and aiding the enemy.²³ One citizen from
Yemen and one from the Sudan were formally charged with conspiracy to commit
certain violations of the law of war (and other crimes triable by military
commission).²⁴ Salim Ahmed Hamdan of Yemen, accused of providing physical
security for Osama bin Laden and other high ranking Al Qaeda members and charged
with conspiracy to attack civilians, commit murder by an unprivileged belligerent and
terrorism,²⁵ provided the Supreme Court its first opportunity to address the validity
of the military commissions.
Hamdan v. Rumsfeld
Salim Ahmed Hamdan, who was captured in Afghanistan and is alleged to have
worked for Osama Bin Laden as a body guard and driver, brought this challenge to
the lawfulness of the Secretary of Defense’s plan to try him for alleged war crimes²⁶
before a military commission, arguing that the military commission rules and
procedures were inconsistent with the UCMJ²⁷ and that he had the right to be treated²⁸
as a prisoner of war under the Geneva Conventions. U.S. District Judge Robertson
agreed, finding no inherent authority in the President as Commander-in-Chief of the
Armed Forces to create such tribunals outside of the existing statutory authority, with
which the military commission rules did not comply. He also concluded that the
Geneva Conventions apply to the whole of the conflict in Afghanistan, including

²³ See Press Release, Department of Defense, Guantanamo Detainee Charged (June 10,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040610-0893.html] (last
visited July 21, 2006). Justice Stevens found for a plurality in the Hamdan case that
“conspiracy” is not an “offense triable by military commission” within the meaning of the
UCMJ.
²⁴ Press Release, Department of Defense, Two Guantanamo Detainees Charged (Feb. 24,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040224-0363.html] (last
visited July 21, 2006). The two defendants are charged with “willfully and knowingly
joining an enterprise of persons who shared a common criminal purpose and conspired with
Osama bin Laden and others to commit the following offenses: attacking civilians; attacking
civilian objects; murder by an unprivileged belligerent; destruction of property by an
unprivileged belligerent; and terrorism.” One of the detainees filed for a writ of prohibition
and writ of mandamus with the U.S. Court of Appeals for the Armed Forces (CAAF) in an
effort to halt the military commission proceedings, but the CAAF dismissed the petition
without prejudice in January, 2005. Al Qosi v. Altenburg, 60 M.J. 461(2005).
²⁵ Press Release, Department of Defense, Additional Military Commission Charges Referred
(July 14, 2004), available at [http://www.defenselink.mil/releases/2004/nr20040714-

1030.html] (last visited July 21, 2006).

²⁶ 344 F.Supp.2d 152 (D. D.C. 2004), rev’d 415 F.3d 33 (D.C. Cir. 2005), cert. granted ²⁰⁰⁵
^U^.^S^.^L^E^X^I^S^{8222 (N}^ov^{. 7, 2005).}
²⁷ 10 U.S.C. §§ 801 et seq.
²⁸ There are four Conventions, the most relevant of which is The Geneva Convention
Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3317 (hereinafter
“GPW”).

under their protections all persons detained in connection with the hostilities there,²⁹
and that Hamdan was thus entitled to be treated as a prisoner of war until his status
was determined to be otherwise by a competent tribunal, in accordance with article

5 of the Third Geneva Convention (prisoners of war).

Interpreting the UCMJ in light of the Geneva Conventions, which permits the
punishment of prisoners of war “only if the sentence has been pronounced by the
same courts according to the same procedure as in the case of members of the armed
forces of the Detaining Power,”³⁰ Judge Robertson found no congressional authority
for Hamdan’s trial under the DOD’s rules for military commissions. Hamdan, he
ruled, was not “an offender triable by military tribunal under the law of war” within
the meaning of UCMJ art 21.³¹ Further, he found the rules established by DOD to
be fatally inconsistent with the UCMJ, contrary to UCMJ art. 36³² because they give
military authorities the power to exclude the accused from hearings and deny him
access to evidence presented against him.³³
The government appealed, arguing that the district court should not have
interfered in the military commission prior to its completion, that Hamdan is not
entitled to protection from the Geneva Conventions, and that the President has
inherent authority to establish military commissions, which need not conform to
statutes regulating military courts-martial.³⁴ The D.C. Circuit Court of Appeals
rejected the government’s argument that the federal courts had no jurisdiction to
interfere in ongoing commission proceedings, but otherwise agreed with the
government. Writing for a unanimous court, Judge Randolph reversed the lower
court’s finding, ruling that the Geneva Conventions are not judicially enforceable,³⁵
that even if they were, Hamdan is not entitled to their protections, and that in any
event, the military commission would qualify as a “competent tribunal” where
Hamdan may challenge his non-POW status, within the meaning of U.S. Army
regulations implementing the Conventions.³⁶
The appellate court did not accept the government’s argument that the President
has inherent authority to create military commissions without any authorization from
Congress, but found such authority in the Authorization to Use Military Force

²⁹ 344 F.Supp.2d at 161.
³⁰ GPW art. 102.
³¹ 344 F.Supp.2d at 158-59.
³² 10 U.S.C. § 836 (procedures for military commissions may not be “contrary to or
inconsistent with” the UCMJ).
³³ 344 F.Supp.2d at 166.
³⁴ See Brief for Appellants, Hamdan v. Rumsfeld, No. 04-5393 (D.C. Cir.).
³⁵ Rumsfeld v. Hamdan, 415 F.3d 33, 39-40 (D.C. Cir. July 15, 2005).
³⁶ Id. at 19.

(AUMF),³⁷ read together with UCMJ arts. 21 and 36.³⁸ The court interpreted art. 36
to mean that military commission rules have only to be consistent with those articles
of the UCMJ that refer specifically to military commissions, and not that Congress
meant to incorporate procedural rules for courts-martial into those applicable to
military commissions. However, because the procedural rules to be used by the
military commissions did not, in its view, affect jurisdiction, the court found it
unnecessary to resolve the issue at the interlocutory stage of the case.
With respect to the Geneva Conventions, the D.C. Circuit cited to a footnote
from the World War II Eisentrager³⁹ opinion that expresses doubt that the Court
could grant relief based directly on the 1929 Geneva Convention:
We are not holding that these prisoners have no right which the military
authorities are bound to respect. The United States, by the Geneva Convention
of July 27, 1929, 47 Stat. 2021, concluded ... an agreement upon the treatment
to be accorded captives. These prisoners claim to be and are entitled to its
protection. It is, however, the obvious scheme of the Agreement that
responsibility for observance and enforcement of these rights is upon political
and military authorities. Rights of alien enemies are vindicated under it only
through protests and intervention of protecting powers as the rights of our
citizens against foreign governments are vindicated only by Presidential⁴⁰
intervention.
Judge Williams wrote a concurring opinion, agreeing with the government’s
conception of the conflict with Al Qaeda as separate from the conflict with the
Taliban but construing Common Article 3 to apply to any conflict with a non-state
actor, without regard to the geographical confinement of such a conflict within the
borders of a signatory state. Supreme Court nominee John G. Roberts concurred in
the opinion without writing separately.
The Supreme Court granted review and reversed.
Before reaching the merits of the case, the Supreme Court dispensed with the
government’s argument that Congress had, by passing the Detainee Treatment Act

³⁷ Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).
³⁸ Hamdan, 415 F.3d at 37.
³⁹ Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that the federal courts did not have
jurisdiction to hear a petition on behalf of German citizens who had been convicted by U.S.
military commissions in China because the writ of habeas corpus was not available to
“enemy alien[s], who at no relevant time and in no stage of [their] captivity [have] been
within [the court’s] jurisdiction”). The Supreme Court, in Rasul v. Bush, declined to apply
Eisentrager to deny Guantánamo detainees the right to petition for habeas corpus. See
Rasul at 2698 (finding authority for federal court jurisdiction in 28 U.S.C. § 2241, which
grants courts the authority to hear applications for habeas corpus “within their respective
jurisdictions,” by any person who claims to be held “in custody in violation of the
Constitution or laws or treaties of the United States”).
⁴⁰ 339 U.S. at 789 n.14.

of 2005 (DTA),⁴¹ stripped the Court of its jurisdiction to review habeas corpus
challenges by or on behalf of Guantanamo detainees whose petitions had already
been filed.⁴² The government’s argument that the petitioner had no rights conferred
by the Geneva Conventions that could be adjudicated in federal court likewise did not
persuade the Court to dismiss the case. Regardless of whether the Geneva
Conventions provide rights that are enforceable in Article III courts, the Court found
that Congress, by incorporating the “law of war” into UCMJ art. 21,⁴³ brought the
Geneva Conventions within the scope of law to be applied by courts. The Court
disagreed that the Eisentrager case requires another result, noting that the Court there
had decided the treaty question on the merits based on its interpretation of the
Geneva Convention of 1929 and that the 1949 Conventions were drafted to reject that
interpretation.⁴⁴ Justice Scalia, joined by Justices Thomas and Alito, dissented,
arguing that the DTA should be interpreted to preclude the Court’s review.
In response to the holding by the court below that Hamdan, as a putative
member of al Qaeda, was not entitled to any of the protections accorded by the
Geneva Conventions, the Court concluded that at the very least, Common Article 3
of the Geneva Conventions applies, even to members of al Qaeda, according to them
a minimum baseline of protections, including protection from the “passing of
sentences and the carrying out of executions without previous judgment pronounced
by a regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.”⁴⁵ Although recognizing that

⁴¹ P.L. 109-148, §1005(e)(1) provides that “no court … shall have jurisdiction to hear or
consider … an application for … habeas corpus filed by … an alien detained … at
Guantanamo Bay.” The provision was not yet law when the appellate court decided against
the petitioner, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d 548 U.S. __
(2006). At issue was whether this provision applies to pending cases. The Court found that
the provision does not apply to Hamdan’s petition, but did not resolve whether it affects
other cases that fall under the DTA’s provisions regarding final review of Combatant Status
Review Tribunals. Slip op. at 19, and n.14.
⁴² Id. at 7. To resolve the question, the majority employed canons of statutory interpretation
supplemented by legislative history, avoiding the question of whether the withdrawal of the
Court’s jurisdiction would constitute a suspension of the Writ of Habeas Corpus, or whether
it would amount to impermissible “court-stripping.” Justice Scalia, joined by Justices Alito
and Thomas in his dissent, interpreted the DTA as a revocation of jurisdiction.
⁴³ 10 U.S.C. § 821 (“The provisions of [the UCMJ] conferring jurisdiction upon
courts-martial do not deprive military commissions, provost courts, or other military
tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or
by the law of war may be tried by military commissions, provost courts, or other military
tribunals.”). The Hamdan majority concluded that “compliance with the law of war is the
condition upon which the authority set forth in Article 21 is granted.” Hamdan, slip op. at

63.

⁴⁴ Hamdan, slip op. at 63-65.
⁴⁵ GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva
Conventions and applies to any “conflict not of an international character.” The majority
declined to accept the President’s interpretation of Common Article 3 as inapplicable to the
conflict with al Qaeda and interpreted the phrase “in contradistinction to a conflict between
(continued...)

Common Article 3 “obviously tolerates a great degree of flexibility in trying
individuals captured during armed conflict” and that “its requirements are general
ones, crafted to accommodate a wide variety of legal systems,” the Court found that
the military commissions under M.C.O. No. 1 do not meet these criteria. In
particular, the military commissions are not “regularly constituted” because they
deviate too far, in the Court’s view, from the rules that apply to courts-martial,
without a satisfactory explanation of the need for such deviation.⁴⁶
With respect to the authority to create the military commissions, the Court held
that any power to create them must flow from the Constitution and must be among
those “powers granted jointly to the President and Congress in time of war.”⁴⁷ It
disagreed with the government’s position that Congress had authorized the
commissions either when it passed the Authorization to Use Military Force
(AUMF)⁴⁸ or the DTA. Although the Court assumed that the AUMF activated the
President’s war powers, it did not view the AUMF as expanding the President’s
powers beyond the authorization set forth in the UCMJ. The Court also noted that
the DTA, while recognizing the existence of military commissions, does not
specifically authorize them. At most, these statutes “acknowledge a general
Presidential authority to convene military commissions in circumstances where
justified under the ‘Constitution and laws,’ including the law of war.”⁴⁹
In addition to limiting military commissions to trials of offenders and offenses
that are by statute or by the law of war consigned to such tribunals, the UCMJ
provides limitations with respect to the procedural rules that may be employed.
Article 36 (10 U.S.C. § 836) authorizes the President to prescribe rules for “pretrial,
trial, and post-trial procedures, including modes of proof, for cases arising under this
chapter triable in courts-martial, military commissions and other military tribunals.”
Such rules are to “apply the principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United States district courts” insofar
as the President “considers practicable” but that “may not be contrary to or
inconsistent” with the UCMJ. In addition, rules made pursuant to this authority
“shall be uniform insofar as practicable.” The President had determined with respect
to the military commissions that “it is impracticable to apply the rules and principles

⁴⁵ (...continued)
nations,” which the Geneva Conventions designate a “conflict of international character.”
Hamdan, slip op. at 67.
⁴⁶ Id. at 70 (plurality opinion); Id. (Kennedy, J., concurring) at 10. Justice Stevens, joined
by Justices Ginsburg, Breyer, and Souter, further based their conclusion on the basis that
M.C.O. No. 1 did not meet all criteria of art. 75 of Protocol I to the Geneva Conventions of
1949, adopted in 1977 (Protocol I). While the United States is not party to Protocol I, the
plurality noted that many authorities regard it as customary international law.
⁴⁷ Hamdan, slip op. at 27 (citing Congress’s powers to “declare War ... and make Rules
concerning Captures on Land and Water,” Art. I, §8, cl. 11, to “raise and support Armies,”
id., cl. 12, to “define and punish ... Offences against the Law of Nations,” id., cl. 10, and “To
make Rules for the Government and Regulation of the land and naval Forces,” id., cl. 14.).
⁴⁸ P.L. 107-40, 115 Stat. 224 (2001).
⁴⁹ Hamdan, slip op. at 30.

of law that govern ‘the trial of criminal cases in the United States district courts’” but
made no determination with respect to the practicability of applying rules different
from those that apply in courts-martial.⁵⁰
The Court interpreted article 36 to provide the President discretion to determine
which federal court rules need not be applied by various military tribunals⁵¹ due to
their impracticability. However, the Court read the uniformity requirement as
according less discretion to the President to determine what is practicable when
providing different rules for courts-martial, military commissions, and other military
tribunals.⁵² Unlike the requirement for rules to track closely with federal court rules,
which the President need follow only insofar as he deems practicable, the Court
reasoned, the uniformity requirement applies unless its application is demonstrably
impracticable. Thus, less deference was found owing, and the Court found that the
government had failed to demonstrate that circumstances make any courts-martial
rules impracticable for use in military commissions. Further, the Court found that
some of the rules provided in the Defense Department rules set forth in Military
Commission Order No. 1 (“M.C.O. No. 1”), in particular the provision allowing the
exclusion of the defendant from attending portions of his trial or hearing some of the
evidence against him, deviated substantially from the procedures that apply in courts-
martial in violation of UCMJ article 36.⁵³
Department of Defense Rules for Military Commissions
M.C.O. No. 1 sets forth procedural rules for the establishment and operation of
military commissions convened pursuant to the November 13, 2001, M.O. It
addresses the jurisdiction and structure of the commissions, prescribes trial
procedures, including standards for admissibility of evidence and procedural
safeguards for the accused, and establishes a review process. The Hamdan Court
found the rules insufficient to meet UCMJ standards and noted that the review
process was not sufficiently independent of the armed services to warrant the Court’s
abstention until the petitioner’s case was finally decided. M.C.O. No. 1 also contains
various mechanisms for safeguarding sensitive government information, which the
Court found problematic in that they could have permitted evidence to be withheld
from the accused but nevertheless considered by the military commission. The
Hamdan Court left open the possibility that the rules established by M.C.O. No. 1
would be valid if Congress were to explicitly approve them.

⁵⁰ The government took the position that the “contrary to or consistent with” language
applies only with respect to parts of the UCMJ that make specific reference to military
commissions.
⁵¹ The term “military tribunal” in the UCMJ should be interpreted to cover all forms of
military courts, encompassing courts-martial as well as military commissions.
⁵² Hamdan, slip op. at 59.
⁵³ Id. at 61. Regarding the defendant’s right to be present during trial, the Court stated,
“[w]hether or not that departure technically is ‘contrary to or inconsistent with’ the terms
of the UCMJ, 10 U. S. C. §836(a), the jettisoning of so basic a right cannot lightly be
excused as ‘practicable.’”

Other orders and instructions may also call for specific congressional approval
to remain valid. M.C.O. No. 3, “Special Administrative Measures for Certain
Communications Subject to Monitoring,” establishes procedures for authorizing and
controlling the monitoring of communications between detainees and their defense
counsel for security or intelligence-gathering purposes. M.C.O. No. 2 and 4
designate appointing officials.
M.C.I. No. 1 provides guidance for interpretation of the instructions as well as
for issuing new instructions. It states that the eight M.C.I. apply to all DOD
personnel as well as prosecuting attorneys assigned by the Justice Department and
all civilian attorneys who have been qualified as members of the pool. Failure on the
part of any of these participants to comply with any instructions or other regulations
“may be subject to the appropriate action by the Appointing Authority, the General
Counsel of the Department of Defense, or the Presiding Officer of a military
commission.”⁵⁴ “Appropriate action” is not further defined, nor is any statutory
authority cited for the power.⁵⁵ M.C.I. No. 1 also reiterates that none of the
instructions is to be construed as creating any enforceable right or privilege.
Jurisdiction. The President’s M.O. has been criticized as overly broad in its
assertion of jurisdiction, because it could be interpreted to cover non-citizens who
have no connection with Al Qaeda or the terrorist attacks of September 11, 2001. It
has been argued that the constitutional and statutory authority of the President to
establish military tribunals does not extend any further than Congress’ authorization
to use armed force in response to the attacks.⁵⁶ Under a literal interpretation of the
M.O., however, the President may designate as subject to the order any non-citizen
he believes has ever engaged in any activity related to international terrorism, no
matter when or where these acts took place. A person subject to the M.O. may be
detained and possibly tried by military tribunal for violations of the law of war and⁵⁷
“other applicable law.”
M.C.O. No. 1 does not explicitly limit its coverage to the scope of the
authorization of force, but it clarifies somewhat the ambiguity with respect to the
offenses covered. M.C.O. No. 1 establishes that commissions may be convened to
try aliens who are designated by the President as subject to the M.O., whether

⁵⁴ M.C.I. No. 1 at § 4.C.
⁵⁵ M.C.I. No. 1 lists 10 U.S.C. § 898 as a reference. That law, Article 98, UCMJ,
Noncompliance with procedural rules, provides:
Any person subject to this chapter who -
(1) is responsible for unnecessary delay in the disposition of any case of a person
accused of an offense under this chapter; or
(2) knowingly and intentionally fails to enforce or comply with any provision of
this chapter regulating the proceedings before, during, or after trial of an
accused;
shall be punished as a court-martial may direct
⁵⁶ P.L. 107-40, 115 Stat. 224 (2001) (authorizing military force against those who “planned,
authorized, committed, [or] aided” the Sept. 11 attacks or who “harbored such ... persons”).
⁵⁷ M.O. § 1(e) (finding such tribunals necessary to protect the United States and for effective
conduct of military operations).

captured overseas or on U.S. territory, for violations of the law of war and “all other
offenses triable by military commissions.” Although this language is somewhat
narrower than “other applicable law,” it remains vague. However, the statutory
language recognizing the jurisdiction of military commissions is similarly vague,
such that the M.C.O. does not appear on its face to exceed the statute with respect to
jurisdiction over offenses. Justice Stevens, joined in that portion of the Hamdan
opinion by only three other Justices, undertook an inquiry of military commission
precedents to determine that “conspiracy” is not a valid charge. M.C.O. No. 1 does
not resolve the issue of whether the President may, consistent with the Constitution,
direct that criminal statutes defined by Congress to be dealt with in federal court be
redefined as “war crimes” to be tried by the military, but the Hamdan decision may
be interpreted to counsel against such an interpretation.
By statute, military tribunals may be used to try “offenders or offenses
designated by statute or the law of war.”⁵⁸ There are only two statutory offenses for
which convening a military commission is explicitly recognized: aiding the enemy
and spying (in time of war).⁵⁹ It appears that “offenses designated by the law of war”
are not necessarily synonymous with “offenses against the law of war.” Military
tribunals may also be used to try civilians in occupied territory for ordinary crimes.⁶⁰
During a war, they may also be used to try civilians for committing belligerent acts,
even those for which lawful belligerents would be entitled to immunity under the law
of war, but only where martial law or military government may legally be exercised
or on the battlefield,⁶¹ where civilian courts are closed.⁶² Such acts are not necessarily

⁵⁸ 10 U.S.C. § 821.
⁵⁹ 10 U.S.C. §§ 904 and 906, respectively. The circumstances under which civilians accused
of aiding the enemy may be tried by military tribunal have not been decided, but a court
interpreting the article may limit its application to conduct committed in territory under
martial law or military government, within a zone of military operations or area of invasion,
or within areas subject to military jurisdiction. See FM 27-10, supra note 8, at para.
79(b)(noting that treason and espionage laws are available for incidents occurring outside
of these areas, but are triable in civil courts). Spying is not technically a violation of the law
of war, however, but violates domestic law and traditionally may be tried by military
commission. See id. at para. 77 (explaining that spies are not punished as “violators of the
law of war, but to render that method of obtaining information as dangerous, difficult, and
ineffective as possible”).
⁶⁰ See, e.g., United States v. Schultz, 4 C.M.R. 104, 114 (1952)(listing as crimes punishable
under the law of war, in occupied territory as murder, manslaughter, robbery, rape, larceny,
arson, maiming, assaults, burglary, and forgery).
⁶¹ See W^IN^T^H^R^O^P, supra note 9, at 836. See N^ATI^ONALI^NSTI^{TUTE OF}M^IL^IT^A^R^YJ^USTI^CE,
A^NNOTATEDG^UI^DE:P^{ROCEDURES FOR}T^RI^{ALS BU}M^IL^IT^ARYC^OM^M^I^SSI^{ONS OF}C^ERTAI^N
N^ON-U^NI^TEDS^TATESC^I^T^I^{ZENS I}^N^THEW^ARA^GAI^NSTT^ERRORI^SM 10-11 (hereinafter
“NIMJ”)(noting that civilians in occupied Germany after World War II were sometimes
tried by military commission for ordinary crimes unrelated to the laws of war). Military
trials of civilians for crimes unrelated to the law of war on U.S. territory under martial law
are permissible only when the courts are not functioning. See Duncan v. Kahanamoku, 327
U.S. 304 (1945).
⁶² See id. (citing Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)). Winthrop notes that the
(continued...)

offenses against the law of war (that is, they do not amount to an international war
crime), but are merely unprivileged under it, although courts and commentators have
tended to use the terms interchangeably. Justice Stevens opined for the plurality that
military commissions in the present circumstances have jurisdiction only for
belligerent offenses and that martial law and military occupation courts will not serve
as precedent for jurisdiction purposes.⁶³
Some argue that civilians, including unprivileged combatants unaffiliated with
a state (or other entity with “international personality” necessary for hostilities to
amount to an “armed conflict”), are not directly subject to the international law of
war and thus may not be prosecuted for violating it.⁶⁴ They may, however, be
prosecuted for most belligerent acts under ordinary domestic law, irrespective of
whether such an act would violate the international law of war if committed by a
soldier. Under international law, those offenders who are entitled to prisoner of war
(POW) status under the Third Geneva Convention [“GPW”] are entitled to be tried
by court-martial and may not be tried by a military commission offering fewer
safeguards than a general court-martial, even if those prisoners are charged with war
crimes.⁶⁵ In the case of a non-international conflict, Common Article 3 of the
Geneva Conventions protects even non-POWs from the “passing of sentences and
the carrying out of executions without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.”⁶⁶

⁶² (...continued)
limitations as to place, time, and subjects were not always strictly followed, mentioning a
Civil War case in which seven persons who had conspired to seize a U.S. merchant vessel
at Panama were captured and transported to San Francisco for trial by military commission.
Id. at 837 (citing the pre-Milligan case of T.E. Hogg).
⁶³ Hamdan, slip op. at 33-34.
⁶⁴ See Leila Nadya Sadat, Terrorism and the Rule of Law, 3 W^ASH.U.G^LOBALS^TUD.L.
R^EV. 135 (2004)(arguing that no armed conflict exists with respect to terrorists, making the
law of war inapplicable to them).
⁶⁵ The Geneva Convention Relative to the Treatment of Prisoners of War [hereinafter
“GPW”] art. 102 states:
^A^pris^on^{er of}^w^a^{r can}^{be v}^a^lidly^s^eⁿ^t^en^ced^on^ly^if^th^{e s}^eⁿ^t^en^{ce h}^a^s^been^pron^ouⁿ^{ced by}
^th^{e s}^a^m^e^cou^r^ts^accordin^g^{to th}^{e s}^a^m^e^procedu^r^{e as}ⁱⁿ^th^{e cas}^{e of}^m^e^m^b^ers^of^th^{e arm}^e^d
^f^o^r^ces^o^f^th^e^Detainⁱⁿ^g^P^o^w^e^r^,^an^d^if^{, f}^u^r^t^h^e^r^m^o^r^{e, th}^{e p}^r^o^v^isioⁿ^s^o^f^th^{e p}^r^esen^t^Ch^ap^ter
^ha^ve^b^e^eⁿ^o^b^s^e^r^ve^d^.
6 U.S.T. 3317. The Supreme Court finding to the contrary in In re Yamashita, 327 U.S. 1
(1946), is likely superceded by the 1949 Geneva Convention. For more information about
the treatment of prisoners of war, see CRS Report RL31367, Treatment of “Battlefield
Detainees” in the War on Terrorism.
⁶⁶ GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva
Conventions and applies to any “conflict not of an international character.” The Hamdan
majority declined to accept the President’s interpretation of Common Article 3 as
inapplicable to the conflict with al Qaeda and interpreted the phrase “in contradistinction
to a conflict between nations,” which the Geneva Conventions designate a “conflict of
international character”. Hamdan, slip op. at 67. The Court did not expressly decide
whether the Global War on Terror (GWOT) is international or non-international for the
(continued...)

Subject-Matter Jurisdiction. M.C.I. No. 2, Crimes and Elements for Trials
by Military Commission, details some of the crimes that might be subject to the
jurisdiction of the commissions. Unlike the rest of the M.C.I. issued so far, this
instruction was published in draft form by DOD for outside comment. The final
version appears to have incorporated some of the revisions, though not all, suggested
by those who offered comments.⁶⁷ The revision clarifies that the burden of proof is⁶⁸
on the prosecution, precludes liability for ex post facto crimes, adds two new war
crimes, and clearly delineates between war crimes and “other offenses triable by
military commission.”
M.C.I. No. 2 clarifies that the crimes and elements derive from the law of war,
but does not provide any references to international treaties or other sources that
comprise the law of war. The instruction does not purport to be an exhaustive list;
it is intended as an illustration of acts punishable under the law of war⁶⁹ or triable by⁷⁰
military commissions. “Aiding the enemy” and “spying” are included under the
latter group, but are not defined with reference to the statutory authority in UCMJ⁷¹
articles 104 and 106 (though the language is very similar). Terrorism is also

⁶⁶ (...continued)
purposes of the Geneva Convention, but merely that it is one or the other.
⁶⁷ See N^ATI^ONALI^NSTI^{TUTE OF}M^IL^IT^A^R^YJ^USTI^CE,M^IL^IT^A^R^YC^OM^M^I^SSI^ONI^NSTRUCTI^ONS
S^OURCEBOOK 95 (2003) [hereinafter “S^OURCEBOOK”]. DOD has not made public an exact
account of who provided comments to the instruction, but some of them are published in the
Sourcebook.
⁶⁸ See M.C.I. No. 2 § 3(A) (“No offense is cognizable in a trial by military commission if
that offense did not exist prior to the conduct in question.”).
⁶⁹ Crimes against the law of war listed in M.C.I. No. 2 are: 1) Willful Killing of Protected
Persons; 2) Attacking Civilians; 3) Attacking Civilian Objects; 4) Attacking Protected
Property; 5) Pillaging; 6) Denying Quarter; 7) Taking Hostages; 8) Employing Poison or
Analogous Weapons; 9) Using Protected Persons as Shields; 10) Using Protected Property
as Shields; 11) Torture; 12) Causing Serious Injury; 13) Mutilation or Maiming; 14) Use of
Treachery or Perfidy; 15) Improper Use of Flag of Truce; 16) Improper Use of Protective
Emblems; 17) Degrading Treatment of a Dead Body; and 18) Rape.
⁷⁰ Crimes “triable by military commissions” include 1) Hijacking or Hazarding a Vessel or
Aircraft; 2) Terrorism; 3) Murder by an Unprivileged Belligerent; 4) Destruction of Property
by an Unprivileged Belligerent; 5) Aiding the Enemy; 6) Spying; 7) Perjury or False
Testimony; and 8) Obstruction of Justice Related to Military Commissions. Listed as “other
forms of liability and related offenses” are: 1) Aiding or Abetting. 2) Solicitation; 3)
Command/Superior Responsibility - Perpetrating; 4) Command/Superior Responsibility -
Misprision; 5) Accessory After the Fact; 6) Conspiracy; and 7) Attempt.
⁷¹ Ordinarily, the charge of “aiding the enemy” would require the accused have allegiance
to the party whose enemy he has aided. DOD added a comment to this charge explaining
that the wrongfulness requirement may necessitate that “in the case of a lawful belligerent,
the accused owe allegiance or some duty to the United States or an ally or coalition
partner...” such as “citizenship, resident alien status, or a contractual relationship with [any
of these countries].” M.C.I. No.2 §6(A)(5)(b)(3). It is unclear what is meant by limiting the
requirement to “a lawful belligerent.” It could be read to make those persons considered the
“enemy” also subject to trial for “aiding the enemy,”as is the case with Australian detainee
(continued...)

defined without reference to the statutory definition in title 18, U.S. Code.⁷²
Although the Supreme Court long ago stated that charges of violations of the law of
war tried before military commissions need not be as exact as those brought before
regular courts,⁷³ it appears that the current Court will look more favorably on
prosecutions where charges are fully supported by precedent.
It appears that “offenses triable by military commissions” in both the M.O. and
M.C.O. No. 1 could cover ordinary belligerent acts carried out by unlawful
combatants, regardless of whether they are technically war crimes. The draft version
of M.C.I. No. 2 made explicit that
Even an attack against a military objective that normally would be permitted
under the law of armed conflict could serve as the basis for th[e] offense [of
terrorism] if the attack itself constituted an unlawful belligerency (that is, if the
attack was committed by an accused who did not enjoy combatant immunity).
Thus, under the earlier draft language, it appeared that a Taliban fighter who attacked
a U.S. or coalition soldier, or perhaps even a soldier of the Northern Alliance prior
to the arrival of U.S. forces, for example, could be charged with “terrorism” and tried
by a military tribunal.⁷⁴
However, the final version of M.C.I. No.2 substituted the following language:
The requirement that the conduct be wrongful for this crime necessitates that the
conduct establishing the offense not constitute an attack against a lawful military
objective undertaken by military forces of a State in the exercise of their official
duties.
The change appears to have eliminated the possibility that Taliban fighters could be
charged with “terrorism” in connection with combat activities; however, under the
DOD rules, such a fighter could still be charged with murder or destruction of

⁷¹ (...continued)
David Hicks. See United States v. Hicks, Charge Sheet, available online at
[http://www.defenselink.mil/news/Jun2004/d20040610cs.pdf] (last visited July 21, 2006).
⁷² 18 U.S.C. § 2331 et seq. defines and punishes terrorism, providing exclusive jurisdiction
to federal courts. See id. at 35 (letter from National Association of Criminal Defense
Lawyers (NACDL) noting that Congress has defined war crimes in 18 U.S.C. § 2441 with
reference to specific treaties).
⁷³ 327 U.S. at 17 (“Obviously charges of violations of the law of war triable before a military
tribunal need not be stated with the precision of a common law indictment.”).
⁷⁴ M.C.I. No. 2 § 6(18). One of the elements of the crime of terrorism is that the “accused
did not enjoy combatant immunity or an object of the attack was not a military objective.”
Another element required that “the killing or destruction was an attack or part of an attack
designed to intimidate or coerce a civilian population, to influence the policy of a
government by intimidation or coercion, or to affect the conduct of a government.” The
final version of the M.C.I. omits the reference to “affect[ing] the conduct of a government.”

property “by an unprivileged belligerent”⁷⁵ for participating in combat, as long as the
commission finds that the accused “did not enjoy combatant immunity,” which,
according the to the instruction, is enjoyed only by “lawful combatants.”⁷⁶ “Lawful
combatant” is not further defined. Inasmuch as the President had declared that all of
the detainees incarcerated at Guantánamo Bay, whether members of the Taliban or
members of Al Qaeda, are unlawful combatants, it appears unlikely that the defense
of combat immunity would be available.⁷⁷ It is unclear whether other defenses, such
as self-defense or duress, would be available to the accused. M.C.I. No. 2 states that
such defenses may be available, but that “[i]n the absence of evidence to the contrary,
defenses in individual cases are presumed not to apply.”⁷⁸
Temporal and Spatial Jurisdiction. The law of war has traditionally
applied within the territorial and temporal boundaries of an armed conflict between
at least two belligerents.⁷⁹ It has not traditionally been applied to conduct occurring
on the territory of neutral states or on the territory of a belligerent that lies outside the
zone of battle, to conduct that preceded the outbreak of hostilities, or to conduct
during hostilities that do not amount to an armed conflict. With respect to the
international conflict in Afghanistan, in which coalition forces ousted the Taliban
government, it appears relatively clear when and where the law of war would apply.
The war on terrorism, however, does not have clear boundaries in time or space,⁸⁰ nor

⁷⁵ M.C.I. No. 2 § 6(19).
⁷⁶ Under M.C.I. No. 2, the lack of combatant immunity is considered an element of some of
the crimes rather than a defense, so the prosecutor has the burden of proving its absence.
⁷⁷ Whether the prisoners at Guantánamo Bay should be considered lawful combatants with
combatant immunity is an issue of some international concern. See generally CRS Report
RL31367, Treatment of ‘Battlefield Detainees’ in the War on Terrorism. DOD’s original
draft included the requirement that a lawful combatant be part of the “armed forces of a
legitimate party to an armed conflict.” The Lawyers’ Committee for Human Rights (now
known as Human Rights First or “HRF”) and Human Rights Watch (“HRW”) urged DOD
to revise the definition in line with the Geneva Convention. See S^OURCEBOOK, supra note
67, at 50-51 and 59. The revised version leaves ambiguous who might be a “lawful
combatant.”
⁷⁸ M.C.I. No. 2 § 4(B). The American Civil Liberties Union (ACLU) objected to this
provision in its comments on the DOD draft, remarking that it “not only places the ordinary
burden on the accused to going forward with evidence that establishes affirmative defense,
but it also appears to place an unprecedented burden on the accused to overcome the
presumption that the defenses do not apply.” See S^OURCEBOOK, supra note 67, at 69.
⁷⁹ See W^IN^T^H^R^O^P, supra note 9, at 773 (the law of war “prescribes the rights and obligations
of belligerents, or ... define[s] the status and relations not only of enemies — whether or not
in arms — but also of persons under military government or martial law and persons simply
resident or being upon the theatre of war, and which authorizes their trial and punishment
when offenders”); id at 836 (military commissions have valid jurisdiction only in theater of
war or territory under martial law or military government).
⁸⁰ It may be argued that no war has a specific deadline and that all conflicts are in a sense
indefinite. In traditional armed conflicts, however, it has been relatively easy to identify
when hostilities have ended; for example, upon the surrender or annihilation of one party,
an annexation of territory under dispute, an armistice or peace treaty, or when one party to
(continued...)

is it entirely clear who the belligerents are. The broad reach of the M.O. to encompass
conduct and persons customarily subject to ordinary criminal law evoked criticism
that the claimed jurisdiction of the military commissions exceeds the customary law
of armed conflict, which M.C.I. No. 2 purports to restate.⁸¹ Any military
commissions established to comply with Hamdan will likely have a better chance of
withstanding court scrutiny if they are supported by ample precedent or explicit
statutory definition.
A common element among the crimes enumerated in M.C.I. No.2 is that the
conduct “took place in the context of and was associated with armed conflict.” The
instruction explains that the phrase requires a “nexus between the conduct and armed
hostilities,”⁸² which has traditionally been a necessary element of any war crime.
However, the definition of “armed hostilities” is broader than the customary
definition of war or “armed conflict.” “Armed hostilities” need not be a declared
war or “ongoing mutual hostilities.”⁸³ Instead, any hostile act or attempted hostile
act might have sufficient nexus if its severity rises to the level of an “armed attack,”
or if it is intended to contribute to such acts. Some commentators have argued that
the expansion of “armed conflict” beyond its customary bounds improperly expands
the jurisdiction of military commissions beyond those that by statute or under the law
of war are triable by military commissions.⁸⁴ The Supreme Court has not clarified
the scope of the “Global War on Terrorism” but seems to have demonstrated a
willingness to address the issue rather than deferring to the President’s interpretation.
The definition for “Enemy” provided in M.C.I. No. 2 raises similar issues.
According to § 5(B), “Enemy” includes
any entity with which the United States or allied forces may be engaged in armed
conflicts or which is preparing to attack the United States. It is not limited to
foreign nations, or foreign military organizations or members thereof. “Enemy”
specifically includes any organization of terrorists with international reach.

⁸⁰ (...continued)
the conflict unilaterally withdraws its forces. See G^E^R^H^A^R^{D VON}G^LAHN,L^AWA^M^ONG^th
N^ATI^ONS 722-730 (6 ed. 1992).
⁸¹ See Human Rights First, Trial Under Military Order, A Guide to the Final Rules for
Military Commissions (revised May 2006)[hereinafter “HRF”], available at
[http://www.humanrightsfirst.org/us_law/PDF/detainees/trials_under_order0604.pdf]] (last
visited July 21, 2006); Sadat, supra note 64, at 146 (noting possibly advantageous domestic
aspects of treating terrorist attacks as war crimes, but identifying possible pitfalls of creating
a new international legal regime).
⁸² M.C.I. No. 2 § 5(C).
⁸³ Id.
⁸⁴ See S^OURCEBOOK, supra note 67, at 38-39 (NACDL comments); id. at 51 (Human Rights
Watch (HRW) comments); id. at 59-60 (LCHR). However, M.C.I. No. 9 lists among
possible “material errors of law” for which the Reviewing Panel might return a finding for
further procedures, “a conviction of a charge that fails to state an offense that by statute or
the law of war may be tried by military commission. ...” M.C.I. No. 9 § 4(C)(2)(b).

Some observers argue that this impermissibly subjects suspected international
criminals to the jurisdiction of military commissions in circumstances in which the
law of armed conflict has never applied.⁸⁵ The distinction between a “war crime,”
traditionally subject to the jurisdiction of military commissions, and a common
crime, traditionally the province of criminal courts, may prove to be a matter of some
contention during some of the proceedings.⁸⁶
Composition and Powers. Under M.C.O. No. 1, the planned military
commissions consist of a panel of three to seven military officers as well as one or
more alternate members who had been “determined to be competent to perform the⁸⁷
duties involved” by the Secretary of Defense or his designee, and could include
reserve personnel on active duty, National Guard personnel in active federal service,
and retired personnel recalled to active duty. The rules also permit the appointment
of persons temporarily commissioned by the President to serve as officers in the⁸⁸
armed services during a national emergency. The presiding officer is required to
be a judge advocate in any of the U.S. armed forces, but not necessarily a military⁸⁹
judge.
The presiding officer is vested with the authority to decide evidentiary matters
and interlocutory motions, or to refer them to the commission or certify them to
Appointing Authority for decision. The presiding officer has the power to close any
portion of the proceedings in accordance with M.C.O. No. 1, and “to act upon any
contempt or breach of Commission rules and procedures,” including disciplining any
individual who violates any “laws, rules, regulations, or other orders” applicable to
the commission, as the presiding officer saw fit. Presumably this power was to
include not only military and civilian attorneys but also any witnesses who had been
summoned under order of the Secretary of Defense pursuant to M.C.O. No. 1 §

5(A)(5).⁹⁰ The UCMJ authorizes military commissions to punish contempt with a⁹¹

fine of $100, confinement for up to 30 days, or both. Under the UCMJ, a duly
subpoenaed witness who is not subject to the UCMJ and who refuses to appear⁹²
before a military commission may be prosecuted in federal court. To the extent that

⁸⁵ Seeid. at 38 (NACDL comments).
⁸⁶ See id. at 98 (commentary of Eugene R. Fidell and Michael F. Noone).
⁸⁷ M.C.O. No. 1 § 4(A)(3).
⁸⁸ See 10 U.S.C. § 603, listed as reference (e) of M.C.O. No. 1.
⁸⁹ M.C.O. No. 1 § 4(A)(4). See NIMJ, supra note 61, at 17 (commenting that the lack of a
military judge to preside over the proceedings is a significant departure from the UCMJ).
A judge advocate is a military officer of the Judge Advocate General’s Corps of the Army
or Navy (a military lawyer). A military judge is a judge advocate who is certified as
qualified by the JAG Corps of his or her service to serve in a role similar to civilian judges.
⁹⁰ See M.C.O. No. 1 § 3(C) (asserting jurisdiction over participants in commission
proceedings “as necessary to preserve the integrity and order of the proceedings”).
⁹¹ See 10 U.S.C. § 848.
⁹² See 10 U.S.C. § 847. It is unclear how witnesses are “duly subpoenaed;” 10 U.S.C. § 846
empowers the president of the court-martial to compel witnesses to appear and testify and
(continued...)

M.C.O. No. 1 would allow disciplinary measures against civilian witnesses who
refuse to testify or produce other evidence as ordered by the commission, M.C.O. No.

1 would appear to be inconsistent with the UCMJ.

One of the perceived shortcomings of the M.O. has to do with the problem of
command influence over commission personnel. M.C.O. No. 1 provides for a “full
and fair trial,” but contains few specific safeguards to address the issue of
impartiality. Under the rules as presently written, the President would have complete
control over the proceedings. He or his designee decide which charges to press,
select the members of the panel, the prosecution and the defense counsel, select the
members of the review panel, and approve and implement the final outcome. The
procedural rules remain entirely under the control of the President or his designees,
who are vested with authority to write them, interpret them, enforce them, and amend
them at any time. All commission personnel other than the commission members
themselves are under the supervision of the Secretary of Defense, directly or through
the DOD General Counsel.⁹³ The Secretary of Defense acted as the direct supervisor
of Review Panel members.⁹⁴ Originally, both the Chief Prosecutor and the Chief
Defense Counsel were to report ultimately to the DOD General Counsel, which led
some critics to warn that defense counsel were insufficiently independent from the
prosecution.⁹⁵ DOD subsequently amended the instructions so that the Chief
Prosecutor reports to the Legal Advisor to the Appointing Authority, but as Justice
Kennedy noted in his concurring opinion, the concentration of authority in the
Appointing Authority remains a significant departure from the structural safeguards
Congress has built into the military justice system.⁹⁶
The following sections summarize provisions of the procedural rules meant to
provide appropriate procedural safeguards.
Procedures Accorded the Accused. The military commissions
established pursuant to M.C.O. No. 1 have procedural safeguards similar to many of
those that apply in general courts-martial, but the M.C.O. does not specifically adopt
any procedures from the UCMJ, even those that explicitly apply to military⁹⁷
commissions. The M.C.O. provides that only the procedures it prescribes or any

⁹² (...continued)
to compel production of evidence, but this statutory authority does not explicitly apply to
military commissions. The subpoena power extends to “any part of the United States, or the
Territories, Commonwealth and possessions.”
⁹³ M.C.I. No. 6.
⁹⁴ Id. § 3(A)(7).
⁹⁵ Cf United States v. Wiesen, 56 M.J. 172 (2001), aff’d on reconsideration, 57 M.J. 48
(2002)(noting that command relationships among participants in court-martial proceeding
may give rise to “implied bias”).
⁹⁶ Hamdan, slip op. at 11-16 (Kennedy, J. concurring).
⁹⁷ See 10 U.S.C. § 836 (providing military commission rules “may not be contrary to or
inconsistent with [the UCMJ]”). But see In re Yamashita, 327 U.S. 1, 19-20 (1946)(finding
Congress did not intend the language “military commission” in Article 38 of the Articles of
(continued...)

supplemental regulations that may be established pursuant to the M.O., and no others
shall govern the trials,⁹⁸ perhaps precluding commissions from looking to the UCMJ
or other law to fill in any gaps. The M.C.O. does not explicitly recognize that
accused persons have rights under the law. The procedures that are accorded to the
accused do not give rise to any enforceable right, benefit or privilege, and are not to
be construed as requirements of the U.S. Constitution.⁹⁹ The accused has no
opportunity to challenge the interpretation of the rules or seek redress in case of a
breach.¹⁰⁰
The procedural safeguards are for the most part listed in section 5. The accused
is entitled to be informed of the charges sufficiently in advance of trial to prepare a
defense,¹⁰¹ shall be presumed innocent until determined to be guilty beyond a
reasonable doubt by two thirds of the commission members,¹⁰² shall have the right
not to testify at trial unless he so chooses, shall have the opportunity to present
evidence and cross-examine witnesses for the prosecution, and may be present at
every stage of proceeding unless it is closed for security concerns or other reasons.¹⁰³
The presumption of innocence and the right against self-incrimination will result in
an entered plea of “Not Guilty” if the accused refuses to enter a plea or enters a
“Guilty” plea that is determined to be involuntary or ill informed.¹⁰⁴
Open Hearing. The trials themselves are to be conducted openly except to the
extent the Appointing Authority or presiding officer closes proceedings to protect
classified or classifiable information or information protected by law from
unauthorized disclosure, the physical safety of participants, intelligence or law
enforcement sources and methods, other national security interests, or “for any other
reason necessary for the conduct of a full and fair trial.”¹⁰⁵ DOD invited members of

⁹⁷ (...continued)
War, the precursor to UCMJ Art. 36, to mean military commissions trying enemy
combatants). On the other hand, President Bush explicitly invoked UCMJ art. 36 as
statutory authority for the M.O., and included a finding, “consistent with section 836 of title
10, United States Code, that it is not practicable to apply in military commissions under this
order the principles of law and the rules of evidence generally recognized in the trial of
criminal cases in the United States district courts.” M.O. § 1(g). However, the Supreme
Court rejected the finding as unsupported by the record and read the “uniformity” clause of
UCMJ art. 36 as requiring that military commissions must follow rules as close as possible
to those that apply in courts-martial.
⁹⁸ M.C.O. No. 1 § 1.
⁹⁹ Id. § 10.
¹⁰⁰ Id.; M.C.I. No. 1 § 6 (Non-Creation of Right).
¹⁰¹ M.C.O. No. 1 § 5(A).
¹⁰² Id. §§ 5(B-C); 6(F).
¹⁰³ Id. ^{§§ 4(A}⁾^(5)(a);^5(K⁾^;^6B(3).
¹⁰⁴ Id. §§ 5(B) and 6(B).
¹⁰⁵ M.C.O. No. 1 § 6(D)(5).

the press to apply for permission to attend the trials,¹⁰⁶ although it initially informed
Human Rights Watch and other groups that logistical issues would likely preclude
their attendance.¹⁰⁷ However, at the discretion of the Appointing Authority, “open
proceedings” need not necessarily be open to the public and the press.¹⁰⁸ Proceedings
may be closed to the accused or the accused’s civilian attorney, but not to detailed
defense counsel. Furthermore, counsel for either side must obtain permission from
the Appointing Authority or the DOD General Counsel in order to make a statement
to the press.¹⁰⁹
Because the public, and not just the accused, has a constitutionally protected
interest in public trials, the extent to which trials by military commission are open to
the press and public may be subject to challenge by media representatives.¹¹⁰ The
First Amendment right of public access extends to trials by court-martial,¹¹¹ but is not
absolute. Trials may be closed only where the following test is met: the party seeking
closure demonstrates an overriding interest that is likely to be prejudiced; the closure
is narrowly tailored to protect that interest; the trial court has considered reasonable
alternatives to closure; and the trial court makes adequate findings to support the
closure.¹¹² Because procedures established under M.C.O. No. 1 appear to allow the
exclusion of the press and public based on the discretion of the Appointing Authority
without any consideration of the above requirements with respect to the specific
exigencies of the case at trial, the procedures may implicate the First Amendment
rights of the press and public.
Although the First Amendment bars government interference with the free press,
it does not impose on the government a duty “to accord the press special access to
information not shared by members of the public generally.”¹¹³ The reporters’ right
to gather information does not include an absolute right to gain access to areas not

¹⁰⁶ See DOD Press Release, DOD Announces Media Coverage Opportunities for Military
Commissions (Feb. 11, 2004), available at [http://www.defenselink.mil/advisories/2004/
pa20040211-0205.html] (last visited July 24, 2006).
¹⁰⁷ See Toni Locy, Human Rights Groups Denied Seats at Tribunals, USAT^ODAY, Feb. 24,

2004, at A3.

¹⁰⁸ M.C.O. No. 1 at § 6(B)(3)(“Open proceedings may include, at the discretion of the
Appointing Authority, attendance by the public and accredited press, and public release of
transcripts at the appropriate time.”). In courts-martial, “public” is defined to include
members of the military as well as civilian communities. Rules for Court-Martial (R.C.M.)
Rule 806.
¹⁰⁹ M.C.I. No. 3 § 5(C) (Prosecutor’s Office); M.C.I. No. 4 § 5(C) (Defense counsel,
including members of civilian defense counsel pool).
¹¹⁰ See Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 602 (1982)(newspaper had
standing to challenge court order closing portions of criminal trial).
¹¹¹ United States v. Hershey, 20 M.J. 433 (C.M.A.1985), cert. denied, 474 U.S. 1062 (1986);
United States v. Grunden, 2 M.J. 116 (C.M.A.1977). The press has standing to challenge
closure of military justice proceedings. ABC, Inc. v. Powell, 47 M.J. 363, 365 (1997).
¹¹² See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984).
¹¹³ Pell v. Procunier, 417 U.S. 817, 822-24 (1974).

open to the public. Thus, if the military commissions were to sit in areas off-limits
to the public for other valid reasons, media access may be restricted for reasons of
operational necessity.¹¹⁴ Access of the press to the proceedings of military
commissions may be an issue of contention for the courts ultimately to decide, even
if those tried by military commission are determined to lack the protection of the
Sixth Amendment right to an open trial or means to challenge the trial.¹¹⁵
Right to Counsel. Once charges are referred,¹¹⁶ the defendant will have
military defense counsel assigned free of cost, but may request another JAG officer,
who will be provided as a replacement if available in accordance with any applicable¹¹⁷
instructions or supplementary regulations that might later be issued. The accused
does not have the right to refuse counsel in favor of self-representation.¹¹⁸ M.C.I. No.
4 requires detailed defense counsel to “defend the accused zealously within the
bounds of the law ... notwithstanding any intention expressed by the accused to¹¹⁹
represent himself.”
The accused may also hire a civilian attorney at his own expense, but must be
represented by assigned defense counsel at all relevant times, even if he retains the
services of a civilian attorney. Civilian attorneys may apply to qualify as members
of the pool of eligible attorneys, or may seek to qualify ad hoc at the request of an
accused. Some critics argue the rules provide disincentives for the participation of
civilian lawyers.¹²⁰ Civilian attorneys must agree that the military commission
representation will be his or her primary duty, and are not permitted to bring any
assistants, such as co-counsel or paralegal support personnel, with them to the
defense team. Originally, all defense and case preparation was to be done on site,
and civilian attorneys were not to share documents or discuss the case with anyone
but the detailed counsel or the defendant. These restrictions, read literally, might
have prevented civilian defense counsel from conducting witness interviews or

¹¹⁴ See Juan R. Torruella, On the Slippery Slopes of Afghanistan: Military Commissions and
the Exercise of Presidential Power, 4 U.P^A.J.C^ONST. L. 648, 718 (2002) (noting that
proceedings, if held at the Guantánamo Bay Naval Station, may be de facto closed due to
the physical isolation of the facility).
¹¹⁵ Cf. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir.2002), (finding closure of
immigration hearings based on relation to events of Sept. 11 unconstitutional infringement
on the First Amendment right to free press). But see North Jersey Media Group, Inc. v.
Ashcroft, 308 F.3d 198 (3d Cir. 2002) cert denied 538 U.S. 1056 (2003)(no presumption of
openness for immigration hearings).
¹¹⁶ In practice, some of the detainees have been assigned counsel upon their designation as
subject to the President’s M.O.
¹¹⁷ M.C.O. No. 1 § 4(C). M.C.I. No. 4 § 3(D) lists criteria for the “availability” of selected
detailed counsel.
¹¹⁸ But see Faretta v. California , 422 U.S. 806 (1975) (Const. Amend. VI guarantees the
right to self-representation).
¹¹⁹ M.C.I. No. 4 § 3(C).
¹²⁰ See HRF, supra note 81, at 2-3; Vanessa Blum, Tribunals Put Defense Bar in Bind,
L^EGALT^IME^S, July 14, 2003, at 1 (reporting that only 10 civilian attorneys had applied to
join the pool of civilian defense lawyers).

seeking advice from experts in humanitarian law, for example.¹²¹ However, the
Pentagon later released a new version of M.C.I. No. 5 that loosened the restrictions
to allow communications with “individuals with particularized knowledge that may
assist in discovering relevant evidence.”¹²²
Civilian attorneys must meet strict qualifications to be admitted before a military
commission. The civilian attorney must be a U.S. citizen (except for those
representing Australian detainees¹²³) with at least a SECRET clearance,¹²⁴ who is
admitted to the bar of any state or territory. Furthermore, the civilian attorney may
not have any disciplinary record, and must agree in writing to comply with all rules
of court.¹²⁵ The civilian attorney is not guaranteed access to closed hearings or
information deemed protected under the rules, which may or may not include
classified information.¹²⁶
The requirement that civilian counsel must agree that communications with the
client may be monitored has been modified to require prior notification and to permit
the attorney to notify the client when monitoring is to occur.¹²⁷ Although the
government will not be permitted to use information against the accused at trial,
some argue the absence of the normal attorney-client privilege could impede
communications between them, possibly decreasing the effectiveness of counsel.
Civilian attorneys are bound to inform the military counsel if they learn of
information about a pending crime that could lead to “death, substantial bodily harm,

¹²¹ See S^OURCEBOOK, supra note 67, at 136-37.
¹²² M.C.I. No. 5, Annex B, “Affidavit and Agreement by Civilian Defense Counsel,” at §
II(E)(1). The communications are subject to restrictions on classified or “protected”
information. Id.
¹²³ See DOD Press Release, supra note 21.
¹²⁴ Originally, civilian attorneys were required to pay the costs associated with obtaining a
clearance. M.C.I. No. 5 §3(A)(2)(d)(ii). DOD has waived the administrative costs for
processing applications for TOP SECRET clearances in cases that would require the higher
level of security clearance. See DOD Press Release No. 084-04 , New Military Commission
Orders, Annex Issued (Feb. 6, 2004), available at [http://www.defenselink.mil/releases/

2004/nr20040206-0331.html] (Last visited July 24, 2006).

¹²⁵ M.C.O. No. 1 § 4(C)(3)(b).
¹²⁶ Id.; see Edgar, supra note 10 (emphasizing that national security may be invoked to close
portions of a trial irrespective of whether classified information is involved).
¹²⁷ See M.C.O. No. 3, “Special Administrative Measures for Certain Communications
Subject to Monitoring.” The required affidavit and agreement annexed to M.C.I. No. 3 was
modified to eliminate the following language:
^I^uⁿ^d^er^stan^d^th^at^m^y^co^m^m^uⁿⁱ^catioⁿ^s^w^ith^m^y^clien^t^{, ev}^en^if^tr^ad^itioⁿ^a^lly^co^v^e^r^e^d^b^y^th^e
^atto^rⁿ^ey^-^c^lien^t^p^r^iv^ileg^e^{, m}^a^y^b^e^su^b^j^{ect to}^m^oⁿ^ito^rⁱⁿ^g^o^r^r^e^vⁱ^ew^b^y^g^o^v^e^rⁿ^m^eⁿ^t^o^f^fⁱ^cials,
^u^sⁱⁿ^g^an^y^av^ailab^l^e^m^ean^{s, f}^o^r^secu^r^ity^an^dⁱⁿ^tellig^en^{ce p}^u^r^p^o^s^{es. I}^uⁿ^d^er^stan^d^th^{at an}^y
^su^ch^m^oⁿ^ito^rin^g^w^{ill o}ⁿ^ly^tak^e^p^l^{ace in}^lim^ited^circu^m^stan^{ces w}^h^en^ap^p^r^o^v^ed^b^y^p^r^o^p^e^r
^au^th^ority^{, an}^{d th}^at^an^y^ev^iden^{ce or in}^f^o^rm^ation^deriv^e^{d f}^r^om^s^u^ch^com^m^uⁿⁱ^cation^s^w^ill
ⁿ^o^{t be u}^s^{ed in}^proceedin^g^s^ag^ain^s^{t th}^{e A}^ccu^s^e^{d w}^h^o^m^a^d^e^{or receiv}^e^{d th}^{e relev}^aⁿ^t
^c^o^m^m^uni^c^a^tⁱ^o^n.

or a significant impairment of national security.”¹²⁸ M.C.I. No. 5 provides no criteria
to assist defense counsel in identifying what might constitute a “significant
impairment of national security.”
All defense counsel are under the overall supervision of the Office of the Chief
Defense Counsel, which is entrusted with the proper management of personnel and
resources the duty to preclude conflicts of interest.¹²⁹ The M.C.O. further provides
that “in no circumstance shall accommodation of counsel be allowed to delay
proceedings unreasonably.”¹³⁰ The Appointing Authority may revoke any attorney’s
eligibility to appear before any commission.¹³¹
Some attorneys’ groups have voiced opposition to the restrictions and
requirements placed on civilian defense counsel, arguing the rules would not allow
a defense attorney ethically to represent any client. The board of directors for the
National Association of Criminal Defense Lawyers issued an ethics statement saying
that it is unethical for a lawyer to represent a client before a military tribunal under
the current rules and that lawyers who choose to do so are bound to contest the
unethical conditions.”¹³² The House of Delegates of the American Bar Association
(ABA) took no position on whether civilian lawyers should participate in the
tribunals, but urged the Pentagon to relax some of the rules, especially with respect
to the monitoring of communications between clients and civilian attorneys.¹³³ The
National Institute of Military Justice, while echoing concerns about the commission
rules, has stated that lawyers who participate will be performing an important public
servi ce.¹³⁴
Discovery. The accused has the right to view evidence the Prosecution
intends to present as well as any exculpatory evidence known, as long as it is not
deemed to be protected under Sec. 6(D)(5).¹³⁵ In courts-martial, by contrast, the
accused has the right to view any documents in the possession of the Prosecution

¹²⁸ M.C.I. No. 5, Annex B § II(J).
¹²⁹ M.C.O. No 1 § 4(C)(1); see Torruella, supra note 114, at 719 (noting that the civilian
criminal defense system has no equivalent to this system, in which the accused has no
apparent choice over the supervision of the defense efforts).
¹³⁰ M.C.O. No 1 § 4(A)(5)(c).
¹³¹ Id. § 4(A)(5)(b).
¹³² See NACDL Ethics Advisory Committee Opinion 03-04 (August 2003), available at
[http://www.nacdl.org] (Last visited July 24, 2006); Participation in Secret Military Terror
Trials Unethical, U.S. Lawyers Say, AP Aug. 2, 2003 (quoting incoming NACDL president
Barry Scheck).
¹³³ See U.S. May Ease Tribunal Rules, N^EW^SDAY, Aug. 14, 2003, at A18.
¹³⁴ See NIMJ Statement on Civilian Attorney Participation as Defense Counsel in Military
Commissions, July 13, 2003, available at [http://www.nimj.com/documents/NIMJ_Civ_
Atty_Participation_Statement(1).pdf] (last visited July 24, 2006).
¹³⁵ Id. § 5(E).

related to the charges, and evidence that reasonably tends to negate the guilt of the
accused, reduce the degree of guilt or reduce the punishment.¹³⁶
The accused may also obtain witnesses and documents “to the extent necessary
and reasonably available as determined by the Presiding Officer” and subject to
secrecy determinations. The Appointing Authority shall make available to the
accused “such investigative or other resources” deemed necessary for a full and fair
trial.¹³⁷ Access to other detainees who might be able to provide mitigating or
exculpatory testimony may be impeded by the prohibition on defense counsel from
entering into agreements with “other Accused or Defense Counsel that might cause
them or the Accused they represent to incur an obligation of confidentiality with such
other Accused or Defense Counsel or to effect some other impediment to
representation.”¹³⁸ In other words, communications with potential witnesses would
not be privileged and could be used against the witness at his own trial.
The overriding consideration with regard to whether the accused or defense
counsel (including detailed defense counsel) may gain access to information appears
to be the need for secrecy. The presiding officer may delete specific items from any
information to be made available to the accused or defense counsel, or may direct
that unclassified summaries of protected information be prepared.¹³⁹ However, no
evidence may be admitted for consideration by the rest of the commission members
unless it has been made available to at least the detailed defense counsel.¹⁴⁰
Information that was reviewed by the presiding officer ex parte and in camera but
withheld from the defense over defense objection will be sealed and annexed to the
record of the proceedings for review by the various reviewing authorities.¹⁴¹ Nothing
in the M.C.O. limits the purposes for which the reviewing authorities may use such
material.
Right to Face One’s Accuser. The presiding officer may authorize any
methods appropriate to protect witnesses, including telephone or other electronic¹⁴²
means, closure of all or part of the proceedings and the use of pseudonyms. The
commission may consider sworn or unsworn statements, and these apparently may
be read into evidence without meeting the requirements for authentication of
depositions and without regard to the availability of the witness under the UCMJ, as

¹³⁶ See R.C.M. 701(a)(6); NIMJ, supra note 61, at 31-32.
¹³⁷ M.C.O. No. 1 § 5(H). Civilian defense counsel must agree not to submit any claims for
reimbursement from the government for any costs related to the defense. M.C.I. No. 5
Annex B.
¹³⁸ M.C.I. No. 4 § 5.
¹³⁹ Id. § 6(D)(5)(b). Some observers note that protected information could include
exculpatory evidence as well as incriminating evidence, which could implicate 6^th
Amendment rights and rights under the Geneva Convention, if applicable. See HRF, supra
note 81, at 3.
¹⁴⁰ Id.
¹⁴¹ Id. § 6(D)(5)(d).
¹⁴² Id. § 6(D)(2)(d).

these provisions expressly apply to military commissions.¹⁴³ UCMJ articles 49 and
50 could be read to apply to military commissions the same rules against hearsay
used at courts-martial; however, the Supreme Court has declined to apply similar
provisions to military commissions trying enemy combatants.¹⁴⁴
It was the provision for the use of secret evidence and for the exclusion of the
accused from portions of the hearings that the district court found most troubling in
Hamdan.¹⁴⁵ The court declared “[i]t is obvious beyond the need for citation that such
a dramatic deviation from the confrontation clause could not be countenanced in any
American court ...” and found it apparent that “the right to trial ‘in one’s presence’
is established as a matter of international humanitarian and human rights law.”¹⁴⁶
Under UCMJ art. 39,¹⁴⁷ the accused at a court-martial has the right to be present at
all proceedings other than the deliberation of the members.
Admissibility of Evidence. The standard for the admissibility of evidence
remains as it was stated in the M.O.; evidence is admissible if it is deemed to have¹⁴⁸
“probative value to a reasonable person.” This is a significant departure from the

¹⁴³ See 10 U.S.C. §§ 849 -50. UCMJ art. 49 states:
⁽^d⁾^A^d^u^ly^au^th^en^ticated^d^e^p^o^s^itioⁿ^tak^eⁿ^u^p^oⁿ^r^easoⁿ^ab^{le n}^o^{tice to}^th^{e o}^t^h^e^r^p^a^r^{ties, so}
^f^a^r^as^oth^e^rw^is^{e adm}ⁱ^s^sⁱ^{ble u}ⁿ^d^{er th}^{e ru}^les^of^ev^iden^ce,^m^a^y^be^{read in}^ev^iden^{ce or, in}^th^e
^cas^e^of^au^{diotape, v}ⁱ^{deotape, or s}ⁱ^m^ilar^m^a^te^{rial, m}^a^y^{be play}^{ed in}^ev^iden^{ce bef}^o^{re an}^y
^m^ilitary^co^u^r^{t o}^r^co^m^mⁱ^ssioⁿⁱⁿ^an^y^caseⁿ^o^{t cap}^{ital, o}^rⁱⁿ^an^y^p^r^o^ceedⁱⁿ^g^b^e^f^o^{re a co}^u^r^t
^o^fⁱⁿ^q^u^ir^y^o^r^m^ilitar^y^b^o^a^r^d^{, if}^{it ap}^p^ear^{s —}
⁽¹⁾^th^{at th}^{e w}^itn^{ess r}^e^sid^e^{s o}^r^{is b}^e^y^oⁿ^d^th^e^State,^T^e^r^r^ito^r^y^,^Co^m^m^oⁿ^w^ealth^,^o^r^Distrⁱ^ct
^of^C^o^l^u^m^bⁱ^aⁱⁿ^w^hⁱ^c^h^t^h^{e cou}^r^t^,^com^mⁱ^s^sⁱ^on^{, or board i}^s^{ordered t}^o^sⁱ^t^,^{or bey}^oⁿ^d¹⁰⁰
^m^iles^f^r^om^th^{e place of}^{trial or h}^earin^g^;
⁽²⁾^th^{at th}^{e w}^itn^{ess b}^y^r^easoⁿ^o^f^d^eath^,^ag^{e, sick}ⁿ^e^{ss, b}^o^d^ilyⁱⁿ^fⁱ^r^m^ity^{, im}^p^r^isoⁿ^m^eⁿ^t^,
^m^ilitaryⁿ^ecessity^{, n}^oⁿ^a^m^eⁿ^a^b^ility^to^p^r^o^{cess, o}^r^o^t^h^e^{r reaso}ⁿ^ab^{le cau}^{se, is u}ⁿ^a^b^l^{e o}^r
^ref^u^s^e^s^{to appear an}^{d tes}^tif^yⁱⁿ^pers^on^{at th}^{e place of}^{trial or h}^earin^g^;^or
⁽³⁾^t^h^a^t^t^h^e^p^r^e^s^eⁿ^t^w^h^e^r^e^a^b^o^u^t^s^o^f^t^h^e^wⁱ^tⁿ^e^{ss i}^s^unkno^wⁿ^.
⁽^e⁾^Su^b^j^{ect to}^su^b^s^ectioⁿ⁽^d⁾^,^testim^oⁿ^y^b^y^d^e^p^o^s^itioⁿ^m^a^y^b^e^p^r^esen^ted^b^y^th^e^d^e^f^eⁿ^s^eⁱⁿ
^{capital cas}^es^.
⁽^f⁾^Su^b^j^e^c^t^t^o^s^u^b^s^ectioⁿ⁽^d⁾^,^{a d}^e^p^o^s^itioⁿ^m^a^y^b^e^r^eadⁱⁿ^ev^id^en^{ce o}^r^{, in}^th^{e case o}^f
^au^{diotape, v}ⁱ^{deotape, or s}ⁱ^m^{ilar m}^a^{terial, m}^a^y^{be play}^{ed in}^ev^iden^{ce in}^an^y^cas^{e in}^w^h^ich
^th^{e d}^eath^p^eⁿ^a^lty^is^au^th^o^r^ized^b^u^{t is n}^o^{t m}^aⁿ^d^atory^,^w^h^en^ev^{er th}^{e con}^v^eⁿⁱⁿ^g^au^th^ority
^directs^th^{at th}^{e cas}^{e be treated as}ⁿ^o^t^{capital, an}^{d in}^s^u^ch^{a cas}^{e a s}^eⁿ^t^en^{ce of}^death^m^a^y
ⁿ^o^{t b}^e^ad^j^u^d^g^ed^b^y^th^{e co}^u^r^t-^m^a^r^tial.
¹⁴⁴ See In re Yamashita, 327 U.S. 1, 19 (1946) (declining to apply art. 25 of the Articles of
War, which is substantially the same as current UCMJ art. 49, to trial by military
commission of an enemy combatant). The Yamashita Court concluded that Congress
intended the procedural safeguards in the Articles of War to apply only to persons “subject
to military law” under article 2. But see id. at 61-72 (Rutledge, J. dissenting)(arguing the
plain language of the statute does not support that interpretation).
¹⁴⁵ Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 167-68 (D.D.C. 2004).
¹⁴⁶ Id. at 168.
¹⁴⁷ 10 U.S.C.§ 839.
¹⁴⁸ M.C.O. No. 1 § 6(D)(1).

Military Rules of Evidence (Mil. R. Evid.),¹⁴⁹ which 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].”¹⁵⁰ In a court-
martial, relevant evidence may be excluded if its probative value is substantially
outweighed by other factors.¹⁵¹
“Probative value to a reasonable man” is a seemingly lax standard for
application to criminal trials.¹⁵² A reasonable person could find plausible sounding
rumors or hearsay to be at least somewhat probative, despite inherent questions of
reliability and fairness that both federal and military rules of evidence are designed
to address. Furthermore, defendants before military commissions do not appear to
have the right to move that evidence be excluded because of its propensity to create
confusion or unfair prejudice, or because it was unlawfully obtained or coerced
through the use of measures less severe than torture. In March 2006, DOD released
M.C.I. No. 10 prohibiting prosecutors from introducing, and military commissions
from admitting, statements established to have been made as a result of torture.
Sentencing. The prosecution must provide in advance to the accused any
evidence to be used for sentencing, unless good cause is shown. The accused may
present evidence and make a statement during sentencing proceedings; however, this
right does not appear to mirror the right to make an unsworn statement that military
defendants may exercise in regular courts-martial.¹⁵³ Statements made by the accused
during the sentencing phase appear to be subject to cross-examination.
Possible penalties include execution,¹⁵⁴ imprisonment for life or any lesser term,
payment of a fine or restitution (which may be enforced by confiscation of property
subject to the rights of third parties), or “such other lawful punishment or condition
of punishment” determined to be proper. Detention associated with the accused’s
status as an “enemy combatant” will not count toward serving any sentence
imposed.¹⁵⁵ If the sentence includes confinement, it is unclear whether or how the
conditions of imprisonment will differ from that of detention as an “enemy

¹⁴⁹ The Military Rules of Evidence (Mil. R. Evid.) are contained in the Manual for Courts-
Martial (M.C.M.), established as Exec. Order No. 12473, Manual for Courts-Martial, United
States, 49 Fed. Reg 17,152, (Apr. 23, 1984), as amended. The M.C.M. also contains the
procedural rules for courts-martial, known as the Rules For Courts-Martial (R.C.M.).
¹⁵⁰ Mil. R. Evid. 402.
¹⁵¹ Mil. R. Evid. 403.
¹⁵² See Torruella, supra note 114, at 715; ACTL, supra note 10, at 11.
¹⁵³ See NIMJ, supra note 61, at 37 (citing United States v. Rosato, 32 M.J. 93, 96 (C.M.A.

1991)).

¹⁵⁴ The method of execution used by the Army to carry out a death sentence by military
commission is lethal injection. See U.S. Army Correctional System: Procedures for
Military Executions, AR 190-55 (1999). It is unclear whether DOD will follow these
regulations with respect to sentences issued by these military commissions, but it appears
unlikely that any such sentences would be carried out at Ft. Leavenworth, in accordance
with AR 190-55.
¹⁵⁵ M.C.I. No. 7 § 3(A).

combatant.” Sentences agreed in plea agreements are binding on the commission,
unlike regular courts-martial, in which the agreement is treated as the maximum
sentence. Similar to the practice in military courts-martial, the death penalty may
only be imposed upon a unanimous vote of the Commission.¹⁵⁶ In courts-martial,
however, both conviction for any crime punishable by death and any death sentence
must be by unanimous vote.¹⁵⁷ None of the rules specify which offenses might be
eligible for the death penalty, but the Pentagon announced the death penalty will not
be sought in the cases brought so far.
Post-Trial Procedure. One criticism leveled at the language of the M.O. was
that it does not include an opportunity for the accused to appeal a conviction, and
appears to bar habeas corpus relief. Another was that it appears to allow the
Secretary of Defense (or the President) the discretion to change the verdict, and does
not protect persons from double jeopardy.¹⁵⁸ M.C.O. No.1 addresses these issues in
part.
Review and Appeal. The rules provide for the administrative review of the
trial record by the Appointing Authority, who forwards the record, if found
satisfactory, to a review panel consisting of three military officers, one of whom must
have experience as a judge. The Bush Administration has announced its intent to
commission four individuals to active duty to serve on the Military Commission
Review Panels.¹⁵⁹ They are Griffin Bell, a former U.S. attorney general and judge of
the U.S. Court of Appeals for the 5th Circuit; Edward Biester, a former Member of
the U.S. House of Representatives and current judge of the Court of Common Pleas
of Bucks County, Pennsylvania; the Honorable William T. Coleman Jr., a former
Secretary of Transportation; and Chief Justice Frank Williams of the Rhode Island
Supreme Court.
There is no opportunity for the accused to appeal a conviction in the ordinary
sense. The review panel may, however, at its discretion, review any written
submissions from the prosecution and the defense, who do not appear to have an
opportunity to view or rebut the submission from the opposing party.¹⁶⁰ If the review
panel forms a “firm and definite conviction that a material error of law occurred,” it
returns the case to the Appointing Authority for further proceedings. If the review
panel determines that one or more charges should be dismissed, the Appointing

¹⁵⁶ M.C.O. No. 1 § 6(F).
¹⁵⁷ 10 U.S.C. § 851.
¹⁵⁸ See Laurence H. Tribe, Trial by Fury, T^HEN^EWR^EP^UBLI^C, Dec. 10, 2001.
¹⁵⁹ See Press Release, Military Commission Review Panel Members to be Designated and
Instruction Issued (Dec. 30, 2003), available at [http://www.defenselink.mil/releases/
2003/nr20031230-0822.html] (last visited July 24, 2006). 10 U.S.C. § 603 permits the
President, during war or national emergency, to appoint any qualified person as a military
officer in the grade of major general or below.
¹⁶⁰ The convening authority of a general court-martial is required to consider all matters
presented by the accused. 10 U.S.C. § 860.

Authority is bound to do so.¹⁶¹ For other cases involving errors, the Appointing
Authority is required to return the case to the military commission. Otherwise, the
case is forwarded to the Secretary of Defense with a written recommendation. (Under
the UCMJ, the trial record of a military commission would be forwarded to the
appropriate JAG first.)¹⁶²
After reviewing the record, the Secretary of Defense may forward the case to the
President or return it for further proceedings for any reason, not explicitly limited to
material errors of law. The M.C.O. does not indicate what “further proceedings” may
entail. If the Secretary of Defense is delegated final approving authority, he can
approve or disapprove the finding, or mitigate or commute the sentence. The rules
do not clarify what happens to a case that has been “disapproved.” It is unclear
whether a disapproved finding is effectively vacated and remanded to the military
commission for a rehearing.
The UCMJ forbids rehearings or appeal by the government of verdicts
amounting to a finding of Not Guilty, and prohibits the invalidation of a verdict or
sentence due to an error of law unless the error materially prejudices the substantial
rights of the accused.¹⁶³ The M.C.O. does not contain any such explicit prohibitions,
but M.C.I. No. 9 defines “Material Error of Law” to exclude variances from the M.O.
or any of the military orders or instructions promulgated under it that would not have
had a material effect on the outcome of the military commission.¹⁶⁴ M.C.I. No. 9
allows the review panel to recommend the disapproval of a finding of Guilty on a
basis other than a material error of law.¹⁶⁵ It does not indicate what options the
review panel would have with respect to findings of Not Guilty.
M.C.O. No. 1 does not provide a route for a convicted person to appeal to any
independent authority. Persons subject to the M.O. are described as not privileged to
“seek any remedy or maintain any proceeding, directly or indirectly” in federal or
state court, the court of any foreign nation, or any international tribunal.¹⁶⁶ However,
a defendant may petition a federal court for a writ of habeas corpus to challenge the
jurisdiction of the military commission.¹⁶⁷

¹⁶¹ M.C.I. No. 9 § 4(C).
¹⁶² 10 U.S.C. § 8037 (listing among duties of Air Force Judge Advocate General to “receive,
revise, and have recorded the proceedings of ... military commissions”); 10 U.S.C. § 3037
(similar duty ascribed to Army Judge Advocate General).
¹⁶³ 10 U.S.C. § 859.
¹⁶⁴ M.C.I. No. 9 § 4(C)(2)(a).
¹⁶⁵ M.C.I. No. 9 § 4(C)(1)(b).
¹⁶⁶ M.O. at § 7(b).
¹⁶⁷ See Alberto R. Gonzales, Martial Justice, Full and Fair,N^EWY^ORKT^IME^S (op-ed), Nov.

30, 2001 (stating that the original M.O. was not intended to preclude habeas corpus review).

Rasul v. Bush clarified that the detainees at Guantanamo Bay have access to federal courts,
but the extent to which the findings of military commissions will be reviewable remains
unclear. 124 S. Ct. 2686 (2004).

Protection against Double Jeopardy. The M.C.O. provides that the
accused may not be tried for the same charge twice by any military commission once
the commission’s finding on that charge becomes final (meaning once the verdict and
sentence have been approved).¹⁶⁸ Therefore, apparently, jeopardy does not attach —
there has not been a “trial” — until the final verdict has been approved by the
President or the Secretary of Defense. In contrast, at general courts-martial, jeopardy
attaches after the first introduction of evidence by the prosecution. If a charge is
dismissed or is terminated by the convening authority after the introduction of
evidence but prior to a finding, through no fault of the accused, or if there is a finding
of Not Guilty, the trial is considered complete for purposes of jeopardy, and the
accused may not be tried again for the same charge by any U.S. military or federal
court without the consent of the accused.¹⁶⁹ Although M.C.O. No. 1 provides that an¹⁷⁰
authenticated verdict of Not Guilty by the commission may not be changed to
Guilty,¹⁷¹ either the Secretary of Defense or the President may disapprove the finding
and return the case for “further proceedings” prior to the findings’ becoming final,
regardless of the verdict. If a finding of Not Guilty is referred back to the¹⁷²
commission for rehearing, double jeopardy may be implicated.
Another double jeopardy issue that might arise is related to the requirements for
the specification of charges.¹⁷³ M.C.O. No. 1 does not provide a specific form for the¹⁷⁴
charges, and does not require an oath or signature. If the charge does not
adequately describe the offense, another trial for the same offense under a new
description is not as easily prevented. M.C.I. No. 2, setting forth elements of crimes
triable by the commissions, may provide an effective safeguard; however, new crimes
may be added to its list at any time.
The M.O. also left open the possibility that a person subject to the order might
be transferred at any time to some other governmental authority for trial.¹⁷⁵ A federal
criminal trial, as a trial conducted under the same sovereign as a military
commission, could have double jeopardy implications if the accused had already been

¹⁶⁸ M.C.O. No. 1 § 5(P). The finding is final when “the President or, if designated by the
President, the Secretary of Defense makes a final decision thereon pursuant to Section

4(c)(8) of the President’s Military Order and in accordance with Section 6(H)(6) of [M.C.O.

No. 1].” Id. § 6(H)(2).
¹⁶⁹ 10 U.S.C. § 844. Federal courts and U.S. military courts are considered to serve under
the same sovereign for purposes of double (or former) jeopardy.
¹⁷⁰ In regular courts-martial, the record of a proceeding is “authenticated,” or certified as to
its accuracy, by the military judge who presided over the proceeding. R.C.M. 1104. None
of the military orders or instructions establishing procedures for military commissions
explains what is meant by “authenticated finding.”
¹⁷¹ M.C.O. No. 1 § 6(H)(2).
¹⁷² The UCMJ does not permit rehearing on a charge for which the accused is found on the
facts to be not guilty.
¹⁷³ See NIMJ, supra note 61, at 39.
¹⁷⁴ See M.C.O. No. 1 § 6(A)(1).
¹⁷⁵ M.O. § 7(e).

tried by military commission for the same crime or crimes, even if the commission
proceedings did not result in a final verdict. The federal court would face the issue
of whether jeopardy had already attached prior to the transfer of the individual from
military control to other federal authorities.
Conversely, the M.O. provides the President may determine at any time that an
individual is subject to the M.O., at which point any state or federal authorities
holding the individual would be required to turn the accused over to military
authorities. If the accused were already the subject of a federal criminal trial under
charges for the same conduct that resulted in the President’s determination that the
accused is subject to the M.O., and if jeopardy had already attached in the federal
trial, double jeopardy could be implicated by a new trial before a military
commission. M.C.O. No. 1 does not explicitly provide for a double jeopardy defense
under such circumstances.
Military Commission Legislation
The Bush Administration has presented to Congress a proposal to be cited as the
“Military Commissions Act of 2006.” Senator Frist introduced very similar
legislation, the “Bringing Terrorists to Justice Act of 2006,” as S. 3861 and as title
I of S. 3886, the “Terrorist Tracking, Identification, and Prosecution Act of 2006.”
The Senate Armed Services Committee reported favorably a bill, “Military
Commissions Act of 2006” (S. 3901), which is in most respects similar to the
Administration’s proposal, but varies with respect to jurisdiction and some rules of
evidence. The House Armed Services Committee approved H.R. 6054, also called
the “Military Commissions Act of 2006,” which closely tracks the Administration’s
proposal. After reaching an agreement with the White House with respect to several
provisions in S. 3901, Senator McConnell introduced S. 3930, also entitled the
“Military Commissions Act of 2006.”
All of these bills would authorize the trials of “alien unlawful combatants” by
military commissions for a set of enumerated crimes and provide the accused with
certain rights. All of the bills would add a new chapter 47a after the UCMJ in title
10, U.S. Code. They leave intact the President’s authority to establish military
commissions under the UCMJ, but the Senate bills would seemingly expand that
authority by removing the limitation of such trials to offenses and offenders triable
by military commission pursuant to “statute or the law of war.”¹⁷⁶ All of the bills
would amend article 36, UCMJ (10 U.S.C. § 836) to exclude military commissions
from the need to comply to the extent the President deems practicable with the
procedural rules that apply in federal district courts.¹⁷⁷
To various degrees, the bills clarify that the UCMJ does not apply to military
commissions. S. 3901 and S. 3930 provide that “[e]xcept as otherwise provided [in
the bill or in the UCMJ], the procedures and rules of evidence applicable in trials by

¹⁷⁶ S. 3901 and S. 3930 § 5(b)(2); S. 3886 § 108(d); S. 3861 § 8(d).
¹⁷⁷ H.R. 6054 § 3(b); S. 3901 and S. 3930 § 5(b)(3) apply this exception only to military
commissions under new chapter 47a; S. 3886 § 108(e); S. 3861 § 8(e) would except all
military commissions.

general courts-martial of the United States shall apply in trials by military
commission under this chapter.” (Proposed § 949a(a)). However, they permit the
Secretary of Defense, in consultation with the Attorney General, to make such
exceptions in the applicability in trials by military commission under this chapter
from the procedures and rules of evidence otherwise applicable in general
courts-martial as may be required by the unique circumstances of the conduct of
military and intelligence operations during hostilities or by other practical need.”
(Proposed § 949a(b)). S. 3901 notes that some provisions of the UCMJ do not apply
by their terms, and that “[t]he judicial construction and application of chapter 47 of
this title, while instructive, is therefore not of its own force binding on military
commissions....” S. 3930 and the other bills provide that the judicial application and
construction of the UCMJ does not bind the interpretation of the new chapter.
(Proposed 10 U.S.C. § 948b(b)).
The bills each declare that the military commissions are “regularly constituted
affording all the necessary ‘judicial guarantees which are recognized as indispensable
by civilized peoples’ for purposes of common Article 3 of the Geneva
Conventions.”¹⁷⁸ However, all of the bills provide that the Geneva Conventions may
not be invoked as a source of rights in any U.S. court.¹⁷⁹
Personal Jurisdiction. S. 3901 and S. 3930 define “unlawful enemy
combatant” to mean “an individual engaged in hostilities against the United States
who is not a lawful enemy combatant.” (Proposed § 948a(4)). Jurisdiction of
military commissions would extend to any “alien unlawful enemy combatant engaged
in hostilities or having supported hostilities against the United States.” (Proposed
948c). Aliens who have supported hostilities without having actually engaged in
hostilities would not seem to fit within the definition of unlawful enemy combatant,
and yet the jurisdiction section appears to contemplate their trial by military
commission.
H.R. 6054, S. 3861, and S. 3886 define “unlawful enemy combatant” to mean
an individual determined by the President or the Secretary of Defense ... to be part
of or affiliated with a force or organization ... that is engaged in hostilities against the
United States or its co-belligerents in violation of the law of war”; or “to have
committed a hostile act in aid of” or “to have supported hostilities in aid of such a
force or organization so engaged.” Lawful combatants, such as prisoners of war, are
excluded from the jurisdiction of military commissions in all three bills. H.R. 6054
also excludes protected persons within the meaning of the Fourth Geneva Convention
from the jurisdiction of military commissions. If the armed conflict is non-
international in nature, as many interpret the Supreme Court’s Hamdan opinion to
establish, then no person can qualify for POW status under the third Geneva
Convention or “protected person” status within the meaning of article 4 of the Fourth

¹⁷⁸ S. 3901 § 2(6)(findings); S. 3861, S. 3930, and S. 3861 948b(d); H.R. 6054 948b(c).
¹⁷⁹ H.R. 6054 § 6(b); S. 3901 § 7 (applicable only in civil actions); S. 3861 § 6(b)(1); S.
3886 § 106(b)(1); S. 3930 § 7(a) (applicable only in civil actions). S. 3930 additionally
provides that the accused would not be permitted to invoke the Geneva Conventions “as a
source of rights” in any military commission. Proposed 10 U.S.C. § 948b(f).

Geneva Convention. All persons in captivity would be entitled to protected status
within the meaning of Common Article 3, however.
None of the bills defines “hostilities” or explains 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 bills might run afoul of the courts’ historical aversion to trying civilians before
military tribunal when other courts are available.¹⁸⁰ It is unclear whether this
constitutional principle applies to aliens captured and detained overseas, but the bills
do not appear to exempt from military jurisdiction permanent resident aliens captured
in the United States who might otherwise meet the definition of “unlawful enemy
combatant.” It is generally accepted that aliens within the United States are entitled
to the same protections in criminal trials that apply to U.S. citizens. Therefore, to
subject persons to trial by military commission who do not meet the exception carved
out by the Supreme Court in ex parte Quirin¹⁸¹ for unlawful belligerents, to the extent
such persons enjoy constitutional protections, would likely raise significant
constitutional questions.
Subject Matter Jurisdiction. All of the bills set forth a detailed list of
crimes that may be tried by military commission when committed by alien unlawful
combatants, provided, except in the case of H.R. 6054, that the offense is committed
“in the context of and associated with armed conflict.” The bills (except S. 3901)
each declare that they merely codify offenses that have traditionally been triable by
military commissions, implying that no retroactively punishable offenses are created
in violation of the Constitution’s prohibition against ex post facto crimes and
punishments or the analogous principle applicable under international law.
Although many of the crimes seem to be well-established offenses against the¹⁸²
law of war, at least in the context of an international armed conflict, a court might

¹⁸⁰ See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), Duncan v. Kahanamoku, 327
U.S. 304 (1945).
¹⁸¹ 317 U.S. 1 (1942)
¹⁸² For example, see Article 3 of the Statute governing the International Criminal Tribunal
for the former Yugoslavia (ICTY) includes the following as violations of the laws or
customs of war in non-international armed conflict.
Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause
unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by
military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages,
dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to
religion, charity and education, the arts and sciences, historic monuments and
works of art and science;
(e) plunder of public or private property.
(continued...)

conclude that some of the listed crimes are new. For example, a plurality of the
Supreme Court in Hamdan agreed that conspiracy is not a war crime under the
traditional law of war.¹⁸³ The crime of “murder in violation of the law of war,” which
punishes persons who, as unprivileged belligerents, commit hostile acts that result
in the death of any persons, including lawful combatants, may also be new. While
it appears to be well-established that a civilian who kills a lawful combatant is triable
for murder and cannot invoke the defense of combatant immunity, it is not clear that
the same principle applies in armed conflicts of a non-international nature, where
combatant immunity does not apply. The International Criminal Tribunal for the
former Yugoslavia (ICTY) has found that war crimes in the context of non-
international armed conflict include murder of civilians, but that the killing of a
combatant is not a war crime.¹⁸⁴
Evidentiary Rules. All of the bills provide for the admission of evidence
under rules that are more permissive than the Military Rules of Evidence.

¹⁸² (...continued)
UN Doc. S/Res/827 (1993), art. 3. The ICTY Statute and procedural rules are available at
[http://www.un.org/icty/legaldoc-e/index.htm]. The Trial Chamber in the case Prosecutor
v. Naletilic and Martinovic, (IT-98-34)March 31, 2003, interpreted Article 3 of the Statute
to cover specifically: (i) violations of the Hague law on international conflicts; (ii)
infringements of provisions of the Geneva Conventions other than those classified as grave
breaches by those Conventions; (iii) violations of [Common Article 3) and other customary
rules on internal conflicts, and (iv) violations of agreements binding upon the parties to the
conflict” Id. at para. 224. See also Prosecutor v. Tadic, (IT-94-1) (Appeals Chamber),
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995,
para. 86-89.
The Appeals Chamber there set forth factors that make an offense a “serious” violation
necessary to bring it within the ICTY’s jurisdiction:
(i) the violation must constitute an infringement of a rule of international
humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the
required conditions must be met ...;
(iii) the violation must be “serious”, that is to say, it must constitute a breach of
a rule protecting important values, and the breach must involve grave
consequences for the victim....
(iv) the violation of the rule must entail, under customary or conventional law,
the individual criminal responsibility of the person breaching the rule.
Id. at para. 94
¹⁸³ Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2785 (2006).
¹⁸⁴ Prosecutor v. Kvocka et al., Case No. IT-98-30/1 (Trial Chamber), November 2, 2001,
para. 124: (“An additional requirement for Common Article 3 crimes under Article 3 of the
Statute is that the violations must be committed against persons ‘taking no active part in the
hostilities.’”); Prosecutor v. Jelisic, Case No. IT-95-10 (Trial Chamber), December 14, 1999,
para. 34 (“Common Article 3 protects “[p]ersons taking no active part in the hostilities”
including persons “placed hors de combat by sickness, wounds, detention, or any other
cause.”); Prosecutor v. Blaskic, Case No. IT-95-14 (Trial Chamber), March 3, 2000, para.

180 (“Civilians within the meaning of Article 3 are persons who are not, or no longer,

members of the armed forces. Civilian property covers any property that could not be
legitimately considered a military objective.”).

Hearsay. S. 3901 would provide for the admission of hearsay evidence that
would not be permitted under the Manual for Courts-Martial. The hearsay evidence
is admissible only if the proponent of the evidence notifies the adverse party
sufficiently in advance of the intention to offer the evidence, as well as the
“particulars of the evidence (including information on the general circumstances
under which the evidence was obtained),” and the military judge finds that “the
totality of the circumstances render the evidence more probative on the point for
which it is offered than other evidence which the proponent can procure through
reasonable efforts, taking into consideration the unique circumstances of the conduct
of military and intelligence operations during hostilities.” (S. 3901, Proposed 10
U.S.C. § 949a(b)(3)). S. 3930 eliminates the latter consideration, but provides that
the evidence is inadmissible if the party opposing its admission “clearly demonstrates
that the evidence is unreliable or lacking in probative value.”
H.R. 6054, S. 3886, and S. 3861 are similar to S. 3930, providing that “Hearsay
evidence is admissible unless the military judge finds that the circumstances render
the evidence unreliable or lacking in probative value. However, such evidence may
be admitted only if the proponent of the evidence makes the evidence known to the
adverse party in advance of trial or hearing.” The language does not indicate whether
the any information about the source of the evidence must be provided.
Coerced Testimony. All five bills prohibit the use of statements obtained
through torture as evidence in a trial, except as proof of torture against a person
accused of committing torture. S. 3901 also provides for the exclusion of statements
elicited through cruel, inhuman, or degrading treatment, and the exclusion of
statements elicited through coercive methods not rising to the level of cruel, inhuman
or degrading treatment as defined in the Detainee Treatment Act (DTA) only if the
military judge finds that the totality of circumstances render it reliable and probative,
and the interests of justice would best be served by allowing the commission
members to hear the evidence.
S. 3930 provides a different standard for the admissibility of statements obtained
through coercion that does not amount to torture 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 would be admissible if the military judge finds the
“totality of circumstances under which the statement was made renders it reliable and
possessing sufficient probative value” and “the interests of justice would best be
served” by admission of the statement. Statements taken after passage of the DTA
would be admissible if, in addition to the two criteria above, the military judge finds
that “the interrogation methods used to obtain the statement do not violate the cruel,
unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and
Fourteenth Amendments to the U.S. Constitution.”
H.R. 6054, S. 3881, and S. 3861 provide that “[a]n otherwise admissible
statement, including a statement allegedly obtained by coercion, shall not be admitted
in evidence in a military commission under this chapter if the military judge finds
that the circumstances under which the statement was made render the statement
unreliable or lacking in probative value.”

Classified Evidence. All of the bills under discussion include provisions for
the protection of classified information,¹⁸⁵ generally permitting the substitution of
redacted documents, unclassified summaries of documents, or statements setting
forth what the classified information would tend to prove.
S. 3901 contains procedures that are similar to those provided in Military Rule
of Evidence 505 for application at courts-martial. Classified information is to be
protected during all stages of proceedings and is privileged from disclosure for
national security purposes. Whenever the original classification authority or head of
the agency concerned certifies in writing that particular evidence and its sources have
been declassified to the maximum extent possible, the military judge may authorize,
“to the extent practicable in accordance with the rules applicable in trials by
court-martial,” the “deletion of specified items of classified information from
documents made available to the accused”; the substitution of a “portion or summary
of the information”; or “the substitution of a statement admitting relevant facts that
the classified information would tend to prove.” The military judge must consider a
claim of privilege and review any supporting materials in camera, and is not
permitted to disclose the privileged information to the accused. Proposed 10 U.S.C.
§ 949d(c)(4). Similar substitutions would be permissible in the context of discovery
(see infra). Proposed 10 U.S.C. § 949j(c).
S. 3901 provides a guarantee that the accused must have the right to “examine
and respond to all evidence considered by the military commission on the issue of
guilt or innocence and for sentencing,” and to “be present at all sessions of the
military commission (other than those for deliberations or voting), except when
excluded under section 949d of this title.” Proposed 10 U.S.C. § 949a. Section 949d
permits the exclusion of the accused only for disruptive behavior.
S. 3930 retains these provisions, and also includes a new subsection (e) to
provide for the use of classified evidence at trial, to replace the provisions for
classified information under proposed § 949(c) in S. 3901. Under the procedures
outlined, the government would be permitted to claim a privilege with respect to
information if the head of an executive or military department or agency asserts the
information is properly classified and disclosure would be detrimental to the national
security, without requiring a certification that such information had been declassified
to the maximum extent possible. When the government claims such a privilege, the
military judge may authorize, “to the extent practicable,” the “deletion of specified
items of classified information from documents made available to the accused”; the
substitution of a “portion or summary of the information”; or “the substitution of a
statement admitting relevant facts that the classified information would tend to
prove.” Proposed § 949d(e)(2). The provision specifically allows the introduction
of such alternative evidence to protect classified “sources, methods, or activities by
which the United States acquired the evidence” as long as the evidence is “reliable.”

¹⁸⁵ Defined in proposed § 948a 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)).”

The military judge may require that the defense and the commission members be
permitted to view an unclassified summary of the sources, methods, or activities, to
the extent practicable and consistent with national security. Proposed 10 U.S.C. §
949d(e)(2). It does not appear that the defense counsel or the accused is permitted to
present arguments to the military judge in opposition to the government’s claim of
privilege.
H.R. 6054, S. 3886, and S. 3861 provide for the exclusion of the accused from
portions of his trial in order to allow classified information to be presented to panel
members but not disclosed to the accused. Under these bills, the military judge
would have authority to prevent the accused from attending a portion of the trial only
after specifically finding that the exclusion of the accused is necessary to prevent
“identifiable damage to the national security, including [by disclosing] intelligence
or law enforcement sources, methods, or activities”; or is “necessary to ensure the
physical safety of individuals”; or is necessary “to prevent disruption of the
proceedings by the accused”; and that the exclusion of the accused “is no broader
than necessary”; and “will not deprive the accused of a full and fair trial.” Proposed

10 U.S.C. § 949d(e).

Discovery and Mandatory Provision of Exculpatory Information.
Each of the bills 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. The military commission is authorized to compel witnesses
under U.S. jurisdiction to appear. The military judge may authorize discovery in
accordance with rules prescribed by the Secretary of Defense to redact classified
information or to provide an unclassified summary or statement describing the
evidence. Proposed 10 U.S.C. § 949j.
Under H.R. 6054, S. 3861 and S. 3886, the trial counsel is obligated to disclose
exculpatory evidence of which he is aware to the defense, but such information, if
classified, is available to the accused only in a redacted or summary form, and only
if making the information available is possible without compromising intelligence
sources, methods, or activities, or other national security interests. Classified
information is to be provided to military defense counsel, but civilian counsel is to
have access only if he or she has the appropriate security clearance and such access
is consistent with any procedures the Secretary of Defense implements for the
protection of classified information. Defense counsel would not be able to share such
information with the accused, which many observers assert could impair the
defense’s ability to refute any such evidence.
S. 3901 requires trial counsel to make available to the defense not only
exculpatory information, but also any that would tend to “reduce the degree of guilt
of the accused.” It further provides that the military judge may authorize
substitutions for classified information pursuant to rules similar to the rules that
apply in courts-martial, to the extent practicable. Proposed 10 U.S.C. § 949j.
S. 3930 provides for the mandatory provision of exculpatory information only
(defined as exculpatory evidence that the prosecution would be required to disclose

in a general court-martial¹⁸⁶), and does not permit defense counsel or the accused to
view classified information. The military judge would be authorized to permit
substitute information, including when trial counsel moves to withhold information
pertaining to the sources, methods, or activities by which the information was
acquired. The military judge may (but need not) require that the defense and the
commission members be permitted to view an unclassified summary of the sources,
methods, or activities, to the extent practicable and consistent with national security.
Proposed 10 U.S.C. § 949j.
Post-Trial Procedure and Interlocutory Appeals. The DTA introduced
an appellate mechanism for limited review of Combatant Status Review Tribunal
(CSRT) determinations and final decisions of military commissions.¹⁸⁷ S. 3901 would
modify the DTA so that appeals would be heard in the Court of Appeals for the
Armed Forces (CAAF) rather than the Court of Appeals for the District of Columbia
Circuit. Proposed 10 U.S.C. § 950f. The CAAF would have the authority to review
appeals of final decisions by the accused or interlocutory appeals by the government
of military commission rulings that terminate proceedings of the military
commission, exclude material evidence, or relate to the closure of hearings, the
exclusion of the accused from proceedings, or the provision of substitute evidence
to protect classified information. Proposed 10 U.S.C. § 950d. The defense would
not have an opportunity to submit an interlocutory appeal in the event of rulings that
are unfavorable to the accused. The government would not be permitted to appeal
any ruling of a military commission that amounts to a finding of not guilty of any
charge or specification. The scope of review would be limited to matters of law, and
decisions could only be overturned if an error of law “materially prejudices the
substantial rights of the accused.” Proposed 10 U.S.C. §§ 950a and 950f.
S. 3930, S. 3861, S. 3886, and H.R. 6054 would provide for similar appellate
rules, but would route appeals through the Court of Military Commission Review
(CMCR), a new body to be established by the Secretary of Defense, who would have
the authority to promulgate procedural rules governing its operation. The CMCR
would be comprised of appellate military judges who meet the same qualifications
as military judges or comparable qualifications for civilian judges. Once the CMCR
has approved the final decision of a military commission, the accused would have the
right to petition for a determination by the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit), pursuant to the section 1005(e)(3) of the
DTA. The government would be permitted to submit interlocutory appeals to the

¹⁸⁶ It is not clear what information would be required to be provided under this subsection.
Discovery at court-martial is controlled by R.C.M. 701, which requires trial counsel to
provide to the defense any papers accompanying the charges, sworn statements in the
possession of trial counsel that relate to the charges, and all documents and tangible objects
within the possession or control of military authorities that are material to the preparation
of the defense or that are intended for use in the prosecution’s case-in-chief at trial.
Exculpatory evidence appears to be a subset of “evidence favorable to the defense,” which
includes evidence that tends to negate the guilt of the accused of an offense charged, reduce
the degree of guilt, or reduce the applicable punishment.
¹⁸⁷ For more information about the DTA provisions concerning appellate review and habeas
corpus actions, see CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus
Challenges in Federal Court, by Jennifer K. Elsea and Kenneth Thomas.

CMCR of adverse rulings pertaining to the admission of evidence or that terminates
commission proceedings with respect to a charge or specification (except for a ruling
that amounts to a finding of not guilty), and in the event of an adverse ruling by the
CMCR, would be permitted to appeal to the D.C. Circuit. The accused would not be
permitted to appeal an adverse interlocutory ruling.
The following charts provide a comparison of the proposed military tribunals
under the regulations issued by the Department of Defense, standard procedures for
general courts-martial under the Manual for Courts-Martial, and military tribunals as
proposed by H.R. 6054 and S. 3886, and S. 3901. Table 1 compares the legal
authorities for establishing military tribunals, the jurisdiction over persons and
offenses, and the structures of the tribunals. Table 2, which compares procedural
safeguards incorporated in the DOD regulations and the UCMJ, follows the same
order and format used in CRS Report RL31262, Selected Procedural Safeguards in
Federal, Military, and International Courts, in order to facilitate comparison of the
proposed legislation to safeguards provided in federal court, 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.

CRS-40
Table 1. Comparison of Courts-Martial and Military Commission Rules
General CourtsMilitaryCommission OrderH.R. 6054S. 3901/S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
U.S. Constitution,U.S. Constitution,U.S. Constitution,U.S. Constitution,U.S. Constitution,
Article I, § 8.Article II; PresidentialArticle I, § 8.Article I, § 8.Article I, § 8.
Military Order of
Nov. 13, 2001 (M.O).
ocedureRules are provided byRules are issued byThe Secretary ofThe Secretary ofThe Secretary of
ⁱ^{ki/CRS-RL31600}the Uniform Code ofthe Secretary ofDefense mayDefense mayDefense may
^g/wMilitary JusticeDefense pursuant toprescribe rules ofprescribe rules ofprescribe rules of
^s^.or(UCMJ), chapter 47,the M.O. No otherevidence andevidence andevidence and
^le^ak
title 10, and the Rulesrules apply procedure for trial byprocedure for trial byprocedure for trial by
^://wikifor Courts-Martial(presumablya militarya militarya military
^h^ttp(R.C.M.) and theexcluding the UCMJ). commission.commission. Thecommission.
Military Rules of§ 1.Proposed 10 U.S.C. §rules may not beProposed 10 U.S.C. §
Evidence (Mil. R.949a(a).inconsistent with the949a(a).

Evid.), issued by theThe Presidentnew chapter 47a of
President pursuant todeclared itCongressional noticetitle 10, and rules of
art. 36, UCMJ.“impracticable” tois required not laterprocedure and
10 U.S.C. § 836.employ proceduresthan 60 days prior toevidence applicable to
used in federal court,the effective date ofcourts-martial under
pursuant to 10 U.S.C.any change inthe UCMJ are to
§ 836.procedures.apply to military
Proposed 10 U.S.C. §commissions except

CRS-41
General CourtsMilitaryCommission OrderH.R. 6054S. 3901/S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
949a(c).where otherwise
specified. Proposed

10 U.S.C. § 949a(a).

The Secretary of
Defense, in
consultation with the
ⁱ^{ki/CRS-RL31600}Attorney General,
^g/wmay make exceptions
^s^.orto UCMJ procedural
^le^akrules “as may be
^://wikirequired by the uniquecircumstances of the
^h^ttp
conduct of military
and intelligence
operations during
hostilities or by other
practical need.”
Proposed § 949a(b).
However, the rules
must include certain
rights as listed in §

CRS-42
General CourtsMilitaryCommission OrderH.R. 6054S. 3901/S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
949a(b)(2). Specific
UCMJ provisions the
Secretary may except
are listed in §

949a(b)(3).

Members of theIndividual subject toAny “alien unlawfulCovers “alienCovers unlawful
ⁱ^{ki/CRS-RL31600}sarmed forces, cadets,M.O., determined bycombatant” is subjectunlawful enemyenemy combatants,
^g/wmidshipmen,President to be:to trial by militarycombatants engagedproposed 10 U.S.C. §
^s^.orreservists while on1. a non-citizen, and commission.in hostilities against948c, defined as any
^le^akinactive-duty training,2. a member of AlProposed 10 U.S.C. §the United States forperson who has been
^://wikimembers of theQaeda or person who948c.violations of the lawdetermined to be “part
^h^ttpNational Guard or Airhas engaged in actsof war and otherof or affiliated with a
National Guard whenrelated to terrorismAn “unlawful enemyoffenses specificallyforce or organization,
in federal service,against the Unitedcombatant” is anmade triable byincluding but not
prisoners of war inStates, or who hasindividual determinedmilitary commissionlimited to al Qaeda,
custody of the armedharbored one or moreunder the authority ofas provided in chapterthe Taliban, any
forces, civiliansuch individualsthe President of the47 of title 10, Unitedinternational terrorist
employeesand is referred to theSecretary of DefenseStates Code, andorganization, or
accompanying thecommission by the“to be part of orchapter 47A of titleassociated forces,
armed forces in timeAppointing Authority.affiliated with a force10, United Statesengaged in hostilities
of declared war, and§ 3(A).or organizationCode (as enacted byagainst the United
certain others,(including al Qaeda,this Act).”States or its

CRS-43
General CourtsMilitaryCommission OrderH.R. 6054S. 3901/S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
including “personsthe Taliban, any§ 3; Proposed 10cobelligerents in
within an area leasedinternational terroristU.S.C. § 948c.violation of the law of
by or otherwiseorganization, orwar; to have
reserved or acquiredassociated forces) thatAn “‘unlawful enemycommitted a hostile
for the use of theis engaged incombatant’ means anact in aid of such a
United States.”hostilities against theindividual engaged inforce or organization
10 U.S.C. § 802;United States or itshostilities against theso engaged; or to have
ⁱ^{ki/CRS-RL31600}United States v.co-belligerents inUnited States who issupported hostilities
^g/wAverette, 17 USCMAviolation of the law ofnot a lawful enemyin aid of such a force
^s^.or363 (1968) (holdingwar; to havecombatant.” or organization so
^le^ak“in time of war” tocommitted a hostileProposed 10 U.S.C. §engaged”; including
^://wikimean only warsdeclared by Congress.act in aid of such aforce or organization948a(4).any individualpreviously determined
^h^ttp
Individuals who areso engaged; or to have“Lawful combatant”by a Combatant
subject to militarysupported hostilitiesis defined in terms ofStatus Review
tribunal jurisdictionin aid of such a forceGPW Art. 4. ProposedTribunal “to have
under the law of waror organization so10 U.S.C. § 948a(3).been properly
may also be tried byengaged,” includingdetained as an enemy
general court martial.any individualcombatant”; but
10 U.S.C. § 818.previously determinedexcluding persons
by a Combatantdetermined to be
Status Reviewlawful combatants, or
Tribunal “to haveprisoners of war or

CRS-44
General CourtsMilitaryCommission OrderH.R. 6054S. 3901/S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
been properlyprotected persons
detained as an enemywithin the meaning of
combatant”; butthe Geneva
excluding personsConventions.
determined to beProposed 10 U.S.C. §
lawful combatants, or948a.
prisoners of war or
ⁱ^{ki/CRS-RL31600}protected persons
^g/wwithin the meaning of
^s^.orthe Geneva
^le^ak Conventions.
^://wikiProposed 10 U.S.C. §948a.
^h^ttp
Any offenses madeOffenses in violationOffenses include theDefined crimes areOffenses include the
nsespunishable by theof the laws of war andfollowing: murder ofthe following, whenfollowing “when
UCMJ; offensesall other offensesprotected persons;committed in thecommitted in the
subject to trial bytriable by militaryattacking civilians,context of an armedcontext of and
military tribunalcommission. § 3(B).civilian objects, orconflict: murder ofassociated with armed
under the law of war.protected property;protected persons;conflict”: murder of

10 U.S.C. § 818.M.C.I. No. 2 clarifiespillaging; denyingattacking civilians,protected persons;

that terrorism andquarter; takingcivilian objects, orattacking civilians,
related crimes arehostages; employingprotected property;civilian objects, or
“crimes triable bypoison or analogouspillaging; denyingprotected property;

CRS-45
General CourtsMilitaryCommission OrderH.R. 6054S. 3901/S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
military commission.” weapons; usingquarter; takingpillaging; denying
These include (but areprotected persons orhostages; employingquarter; taking
not limited to): willfulproperty as shields;poison or similarhostages; employing
killing of protectedtorture, cruel orweapons; usingpoison or analogous
persons; attackinginhuman treatment;protected persons orweapons; using
civilians; attackingintentionally causingproperty as shields;protected persons or
civilian objects;serious bodily injury;torture, cruel, unusual,property as shields;
ⁱ^{ki/CRS-RL31600}attacking protectedmutilating oror inhumanetorture, cruel or
^g/wproperty; pillaging;maiming; murder intreatment orinhuman treatment;
^s^.ordenying quarter;violation of the law ofpunishment;intentionally causing
^le^aktaking hostages; war; destruction ofintentionally causingserious bodily injury;
^://wikiemploying poison oranalogous weapons;property in violationof the law of war;serious bodily injury;mutilating ormutilating ormaiming; murder in
^h^ttp
using protectedusing treachery ormaiming; murder inviolation of the law of
persons as shields;perfidy; improperlyviolation of the law ofwar; destruction of
using protectedusing a flag of trucewar; destruction ofproperty in violation
property as shields;or distinctive emblem;property in violationof the law of war;
torture; causingintentionallyof the law of war;using treachery or
serious injury;mistreating a deadusing treachery orperfidy; improperly
mutilation orbody; rape; hijackingperfidy; improperlyusing a flag of truce
maiming; use ofor hazarding a vesselusing a flag of truceor distinctive emblem;
treachery or perfidy;or aircraft; terrorism;or distinctive emblem;intentionally
improper use of flagproviding materialintentionallymistreating a dead

CRS-46
General CourtsMilitaryCommission OrderH.R. 6054S. 3901/S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
of truce; improper usesupport for terrorism;mistreating a deadbody; rape; hijacking
of protectivewrongfully aiding thebody; rape; hijackingor hazarding a vessel
emblems; degradingenemy; spying,or hazarding a vesselor aircraft; terrorism;
treatment of a deadcontempt; perjury andor aircraft; terrorism;providing material
body; and rape;obstruction of justice.providing materialsupport for terrorism;
hijacking or hazardingProposed 10 U.S.C. §support for terrorism;wrongfully aiding the
a vessel or aircraft;950v. Conspiracy (§wrongfully aiding theenemy; spying,
ⁱ^{ki/CRS-RL31600}terrorism; murder by950v(27)), attempts (§enemy; spying,contempt; perjury and
^g/wan unprivileged950t), and solicitationcontempt; perjury andobstruction of justice.
^s^.orbelligerent; (§ 950u) to commitobstruction of justice. Proposed 10 U.S.C. §
^le^akdestruction ofthe defined acts areConspiracy, attempts,950v.
^://wikiproperty by anunprivilegedalso punishable.and solicitations tocommit the definedConspiracy (§
^h^ttp
belligerent; aiding theacts is also950v(27)), attempts (§
enemy; spying;punishable. Proposed950t), and solicitation
perjury or false10 U.S.C. § 950aa et(§ 950u) to commit
testimony; andseq.the defined acts are
obstruction of justice;also punishable.

aiding or abetting;
solicitation;
command/superior
responsibility -
perpetrating;

CRS-47
General CourtsMilitaryCommission OrderH.R. 6054S. 3901/S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
command/superior
responsibility -
misprision; accessory
after the fact;
conspiracy; and
attempt.
positionA military judge andFrom three to sevenA military judge andA military judge andA military judge and
ⁱ^{ki/CRS-RL31600}not less than fivemembers, asat least five members,at least five members,at least five members,
^g/wmembers, or ifdetermined by theproposed 10 U.S.C. §proposed 10 U.S.C. §proposed 10 U.S.C. §
^s^.orrequested, except inAppointing Authority. 948m, unless the948m, unless the948m, unless the
^le^akcapital cases, a§ 4(A)(2).death penalty isdeath penalty isdeath penalty is
^://wikimilitary judge alone. sought, in which casesought, in which casesought, in which case
^h^ttpR.C.M. 501.no fewer than 12no fewer than 12no fewer than 12
members must bemembers must bemembers must be
included, proposed §included, proposed §included, proposed §

949m(c). 949m(c). 949m(c).

^C^oⁿ^g^r^es^sⁱ^on^{al R}^e^s^earch^Serv^ice.

CRS-48
Table 2. Comparison of Procedural Safeguards
General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
esumptionIf the defendant failsThe accused shall beBefore a vote isBefore a vote isBefore a vote isBefore a vote is
Innocence to enter a properpresumed innocenttaken on thetaken on thetaken on thetaken on the
plea, a plea of notuntil proven guilty. findings, thefindings, thefindings, thefindings, the
guilty will be§ 5(B).military judge mustmilitary judge mustmilitary judge mustmilitary judge must
entered. R.C.M. instruct theinstruct theinstruct theinstruct the
ⁱ^{ki/CRS-RL31600}910(b). Commission commission commission commission commission
^g/wmembers must basemembers “that themembers “that themembers “that themembers “that the
^s^.or Members of courttheir vote for aaccused must beaccused must beaccused must beaccused must be
^le^akmartial must befinding of guilty onpresumed to bepresumed to bepresumed to bepresumed to be
^://wikiinstructed that the“accused must beevidence admitted attrial. §§ 5(C); 6(F).innocent until hisguilt is establishedinnocent until hisguilt is establishedinnocent until hisguilt is establishedinnocent until hisguilt is established
^h^ttp
presumed to be by legal andby legal andby legal andby legal and
innocent until theThe Commissioncompetent evidencecompetent evidencecompetent evidencecompetent evidence
accused’s guilt ismust determine thebeyond reasonablebeyond reasonablebeyond reasonablebeyond reasonable
established by legalvoluntary anddoubt.” Proposed 10doubt.” Proposed 10doubt.” Proposed 10doubt.” Proposed 10
and competentinformed nature ofU.S.C. § 949l.U.S.C. § 949l.U.S.C. § 949l.U.S.C. § 949l.
evidence beyond aany plea agreement
reasonable doubt.” submitted by theIf an accusedIf an accused refusesIf an accused refusesIf an accused refuses
R.C.M. 920(e).accused andrefuses to enter ato enter a plea orto enter a plea orto enter a plea, a
approved by theplea or pleads guiltypleads guilty butpleads guilty butplea of not guilty is
Appointingbut providesprovidesprovidesentered. If an

CRS-49
General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
The accused shall beAuthority beforeinconsistentinconsistentinconsistentaccused enters a
properly attired inadmitting it astestimony, or if ittestimony, or if ittestimony, or if itplea of guilty but
uniform with gradestipulation intoappears that heappears that he lacksappears that he lacksprovides testimony
insignia and anyevidence. § 6(B). lacks properproperproperinconsistent with the
decorations to whichunderstanding of theunderstanding of theunderstanding of theplea, or if it appears
entitled. Physicalmeaning and effectmeaning and effectmeaning and effectthat he lacks proper
restraint shall not beof the guilty plea,of the guilty plea,of the guilty plea,understanding of the
ⁱ^{ki/CRS-RL31600}imposed unlessthe commissionthe commissionthe commissionmeaning and effect
^g/wprescribed by themust treat the pleamust treat the pleamust treat the pleaof the guilty plea,
^s^.ormilitary judge. as denying guilt. as denying guilt. as denying guilt. the commission
^le^akR.C.M. 804.Proposed 10 U.S.C.Proposed 10 U.S.C.Proposed 10 U.S.C.must treat the plea
^://wiki§ 949i.§ 949i.§ 949i.as denying guilt. Proposed 10 U.S.C.
^h^ttp§ 949i.
t toCoerced confessionsNot provided. Statements elicitedArticle 31, UCMJ,Article 31, UCMJ,Statements elicited
main Silentor confessions madeNeither the M.O.through torture mayis expressly madeis expressly madethrough torture may
in custody withoutnor M.C.O. requiresnot be entered intoinapplicable. inapplicable. not be entered into
statutory equivalenta warning or barsevidence except toProposed 10 U.S.C.Proposed 10 U.S.C.evidence except to
of Miranda warningthe use ofprove a charge of§ 948b(c).§ 948b(c).prove a charge of
are not admissiblestatements madetorture. Evidencetorture. Evidence
as evidence, unless aduring militaryallegedly obtainedConfessionsConfessionsallegedly obtained
narrow “publicinterrogation, or anyby coercion isallegedly elicitedallegedly elicitedby coercion is
safety” exceptioncoerced statement,inadmissible if thethrough coercion orthrough coercion orinadmissible if the

CRS-50
General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
applies. Art. 31,from militarymilitary judge findscompulsory self-compulsory self-military judge finds
UCMJ, 10 U.S.C. §commissionit to be unreliable orincrimination thatincrimination thatit to be unreliable or
831.proceedings. Art.lacking in probativeare otherwiseare otherwiselacking in probative
31(a), UCMJ (10value. Proposed 10admissible are not toadmissible are not tovalue. Proposed 10
Once a suspect is inU.S.C. § 831) barsU.S.C. § 948r.be excluded at trialbe excluded at trialU.S.C. § 948r.
custody or chargespersons subject to itunless violatesunless violates
have been preferred,from compellingStatements made bysection 948r, whichsection 948r. Procedural rules
ⁱ^{ki/CRS-RL31600}the suspect orany individual tothe accused duringprovides for theProposed 10 U.S.C.may provide that
^g/waccused has themake a confession,an interrogation,exclusion of§ 949a(b)(3)(B).otherwise
^s^.orright to havebut there does notincludingstatements extractedadmissible
^le^akcounsel present forappear to be aquestioning bythrough practicesSection 948rstatements by the
^://wikiquestioning. Oncethe right to counselremedy in case ofviolation. No personforeign or U.S.military,amounting to tortureor cruel, inhuman,provides thatstatements elicitedaccused shall not beexcluded on the
^h^ttpis invoked,subject to the UCMJintelligence, oror degrading,through torture maygrounds of coercion
questioning materialmay compel anycriminaltreatment, except asnot be entered intoor compulsory self-
to the allegations orperson to giveinvestigativeevidence against aevidence except toincrimination so
charges must stop. evidence before anypersonnel, areperson charged withprove a charge oflong as the evidence
Mil. R. Evid.military tribunal ifadmissible only ifsuch treatment. torture. With respectis admissible under

305(d)(1).the evidence is notthe accused isProposed 10 U.S.C.to statementsproposed § 948r.

material to the issuepresent for its§ 949a(a)(3)(B).obtained throughProposed 10 U.S.C.
The prosecutor mustand may tend toadmission or thecoercion that does§ 949a(b)(3)(B).
notify the defense ofdegrade him. evidence isStatements obtainednot amount to
any incriminating10 U.S.C. § 831. “otherwise providedthrough methodstorture, the billStatements made by

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
statements made byto the accused.”that do not amountapplies a differentthe accused during
the accused that areProposed 10 U.S.C.to cruel, inhuman orstandard dependingan interrogation,
relevant to the case§ 949d(f).degrading treatmenton whether theincluding
prior to theunder the DTA, arestatements werequestioning by
arraignment. admissible only ifobtained prior to theforeign or U.S.
Motions to suppressthe totality ofenactment of themilitary,
such statementscircumstancesDTA, in which caseintelligence, or
ⁱ^{ki/CRS-RL31600}must be made priorrender it reliable andstatements would becriminal
^g/wto pleading.probative, and theadmissible if theinvestigative
^s^.orMil. R. Evid. 304.interests of justicemilitary judge findspersonnel, are
^le^akInterrogationswould best bethe “totality ofadmissible only if
^://wikiconducted byforeign officials doserved by allowingthe members to hearcircumstances underwhich the statementthe accused ispresent for its
^h^ttpnot require warningsthe evidence. was made renders itadmission or the
or presence ofProposed 10 U.S.C.reliable andevidence is
counsel unless the§ 948r.possessing sufficient“otherwise provided
interrogation isprobative value” andto the accused.”
instigated or“the interests ofProposed 10 U.S.C.
conducted by U.S.justice would best§ 949d(f).

military personnel.be served” by
Mil. R. Evid. 305. admission of the
statement.
Statements taken

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
after passage of the
DTA would be
admissible if, in
addition to the two
criteria above, the
military judge finds
that “the
ⁱ^{ki/CRS-RL31600} interrogation
^g/wmethods used to
^s^.orobtain the statement
^le^akdo not violate the
^://wikicruel, unusual, orinhumane treatment
^h^ttpor punishment
prohibited by the
Fifth, Eighth, and
Fourteenth
Amendments to the
U.S. Constitution.”
Proposed 10 U.S.C.
§ 948r.

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
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om from“Evidence obtainedas a result of anNot provided; noexclusionary ruleNot provided. Evidence isProcedural rulesmay provide thatProcedural rulesmay provide thatNot provided. Evidence is
reasonable
arches &unlawful search orseizure ... isappears to beavailable. generally permittedif it has probativeevidence gatheredoutside the Unitedevidence gatheredoutside the Unitedgenerally permitted
izuresinadmissible againstHowever, monitoredvalue to aStates withoutStates withoutif it has probativevalue to a
the accused ...”conversationsreasonable person,authorization or aauthorization or areasonable person,
unless certainbetween theunless it is obtainedsearch warrant maysearch warrant mayunless it is obtained
ⁱ^{ki/CRS-RL31600}exceptions apply. detainee and defenseunder circumstancesbe admitted intobe admitted intounder circumstances
^g/wMil. R. Evid. 311.counsel may not bethat would render itevidence. Proposedevidence. Proposedthat would render it
^s^.orcommunicated tounreliable. 10 U.S.C. § 949a.10 U.S.C. § 949a.unreliable.
^le^ak“Authorization topersons involved inProposed 10 U.S.C.Proposed 10 U.S.C.
^://wikisearch” may be oralor written, and mayprosecuting theaccused or used at§§ 948r, 949a.§§ 948r, 949a.

^h^ttpbe issued by atrial. M.C.O. No. 3.
military judge or an
officer in command No provisions for
of the area to bedetermining
searched, or if theprobable cause or
area is not underissuance of search
military control,warrants are
with authority overincluded.
persons subject to
military law or the

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
law of war. It must Insofar as searches
be based onand seizures take
probable cause. place outside of the
Mil. R. Evid. 315.United States
against non-U.S.
persons, the Fourth
Interception of wireAmendment may
ⁱ^{ki/CRS-RL31600}and oralnot apply.
^g/wcommunicationsUnited States v.
^s^.orwithin the UnitedVerdugo-Urquidez,
^le^akStates requires494 U.S. 259
^://wikijudicial applicationin accordance with(1990).

^h^ttp18 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.

CRS-55
General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
Evid. 311(c).
The defendant has aM.C.O. 1 providesAt least oneAt least oneAt least oneAt least one
fectiveright to militarycounsel atthat the accusedmust be representedqualifying militarydefense counsel isqualifying militarydefense counsel is toqualifying militarydefense counsel is toqualifying militarydefense counsel is to
unsel
government“at all relevantto be detailed “asbe detailed “as soonbe detailed “as soonbe detailed “as soon
expense. Thetimes” (presumably,soon as practicableas practicable afteras practicable afteras practicable after
defendant mayonce charges areafter the swearing ofthe swearing ofthe swearing ofthe swearing of
ⁱ^{ki/CRS-RL31600}choose counsel, ifapproved untilcharges….”charges….” charges….” charges….”
^g/wthat attorney isfindings are final Proposed 10 U.S.C.Proposed 10 U.S.C.Proposed 10 U.S.C.Proposed 10 U.S.C.
^s^.orreasonably— but not for§ 948k.§ 948k.§ 948k(a)(3).§ 948k.
^le^akavailable, and mayindividuals who are
^://wikihire a civilianattorney in additiondetained but notcharged) by The accused mayalso hire a civilianThe accused mayalso hire a civilianThe accused mayalso hire a civilianThe accused mayalso hire a civilian
^h^ttpto military counsel. detailed defenseattorney who is aattorney who is aattorney who is aattorney who is a
Art 38, UCMJ, 10counsel. U.S. citizen, isU.S. citizen, isU.S. citizen, isU.S. citizen, is
U.S.C. § 838.§ 4(C)(4). admitted to the baradmitted to the baradmitted to the baradmitted to the bar
in any state, district,in any state, district,in any state, district,in any state, district,
Appointed counselThe accused isor possession, hasor possession, hasor possession, hasor possession, has
must be certified asassigned a militarynever beennever beennever beennever been
qualified and mayjudge advocate todisciplined, has adisciplined, has adisciplined, has adisciplined, has a
not be someone whoserve as counsel, butSECRET clearanceSECRET clearanceSECRET clearanceSECRET clearance
has taken any part inmay request to(or higher, if(or higher, if(or higher, if(or higher, if
the investigation orreplace or augmentnecessary for anecessary for anecessary for anecessary for a

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
prosecution, unlessthe detailed counselparticular case), andparticular case), andparticular case), andparticular case), and
explicitly requestedwith a specificagrees to complyagrees to complyagrees to complyagrees to comply
by the defendant. officer, if thatwith all applicablewith all applicablewith all applicablewith all applicable
Art. 27, UCMJ, 10person is available.rules. If civilianrules. If civilianrules. If civilianrules. If civilian
U.S.C. § 827.§ 4(C)(3)(a). counsel is hired, thecounsel is hired, thecounsel is hired, thecounsel is hired, the
detailed militarydetailed militarydetailed militarydetailed military
The accused maycounsel serves ascounsel serves ascounsel serves ascounsel serves as
ⁱ^{ki/CRS-RL31600}In espionage casesalso hire a civilianassociate counsel. associate counsel. associate counsel. associate counsel. §
^g/wor other cases inattorney who is aProposed 10 U.S.C.Proposed 10 U.S.C.Proposed 10 U.S.C.949c(b).
^s^.orwhich classifiedU.S. citizen, is§ 949c(b). § 949c(b). § 949c(b).
^le^akinformation may beadmitted to the barDefense attorneys
^://wikinecessary to prove acharge or defense,in any state, district,or possession, has aDefense attorneysare not permitted toClassifiedinformation is to beSelf-representationis permitted if theare not permitted toshare classified
^h^ttpthe defense isSECRET clearanceshare classifiedtreated inright to counsel isinformation with
permitted to request(or higher, ifinformation withaccordance with thewaived and thetheir clients or with
the information andnecessary for atheir clients or withrules applicable inaccused obeys trialany other person not
to have the militaryparticular case), andany other person notgeneral courts-rules. Proposed 10entitled to receive it.
judge review inagrees to complyentitled to receive it. martial for makingU.S.C. §Proposed 10 U.S.C.
camera informationwith all applicableProposed 10 U.S.C.such information949a(b)(2)(D).§ 949j(c)(5).
for which therules. The civilian§ 949j(d)(5).available to the
government assertsattorney does notaccused. ProposedTrial counsel needMilitary defense
a privilege. Thereplace the detailedMilitary defense10 U.S.C. § 949j(c).not provide defensecounsel must be
accused and thecounsel, and is notcounsel must becounsel with anypresent for all

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
defense attorney areguaranteed access topresent for allThere is noevidence that isproceedings and
entitle to be presentclassified evidenceproceedings andprovision similar toclassified, but in thehave access to all
for such in cameraor closed hearings. §have access to all§ 949d(e) of thecase the trialclassified evidence
hearings, and4(C)(3)(b).classified evidenceAdministration’scounsel moves foradmitted. Civilian
although theadmitted. Civilianproposal to allowpermission todefense counsel is
government is notDefense Counseldefense counsel isthe exclusion of theintroduce evidencepermitted to be
generally required tomay presentpermitted to beaccused fromwithout disclosingpresent and to
ⁱ^{ki/CRS-RL31600}give them access toevidence at trial andpresent and toportions of the trialthe intelligenceparticipate in all
^g/wthe classifiedcross-examineparticipate in allwhere classifiedsources and methodstrial proceedings,
^s^.orinformation itself,witnesses for thetrial proceedings,information isby which suchand is to be given
^le^akthe military judgeprosecution. § 5(I).and is to be givenpresented.evidence wasaccess to classified
^://wikimay disapprove ofany summary the The Appointingaccess to classifiedevidence to beNo attorney-clientacquired, themilitary judge mayevidence to beadmitted at trial if
^h^ttpgovernmentAuthority mustadmitted at trial ifprivilege isrequire that thethey have the
provides for theorder such resourcesthey have thementioned.defense be permittednecessary security
purpose ofbe provided to thenecessary securityAdverse personnelto view anclearances and
permitting thedefense as he deemsclearances andactions may not beunclassified“such presence and
defense to preparenecessary for a full“such presence andtaken againstsummary of theaccess are consistent
adequately for theand fair trial.” §access are consistentdefense attorneyssources, methods, orwith regulations that
hearing, and may5(H).with regulations thatbecause of the zealactivities by whichthe Secretary may
subject the the Secretary maywith which suchthe United Statesprescribe to protect
government toCommunicationsprescribe to protectofficer, in acting asacquired theclassified
sanctions if itbetween defenseclassifiedcounsel, representedevidence, to theinformation.”

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
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declines to make thecounsel and theinformation.” any accused before aextent practicableProposed 10 U.S.C.
necessaryaccused are subjectProposed 10 U.S.C.militaryand consistent with§ 949d(e).
informationto monitoring by the§ 949d(e).commission…”national security. It
available.government. Proposed 10 U.S.C.does not appear thatNo attorney-client
Mil. R. Evid. 505.AlthoughAt all times, the§ 949b(b).the defense counselprivilege is
informationaccused must haveor the accused is mentioned.
The military judgeobtained throughdefense counselpermitted to present
ⁱ^{ki/CRS-RL31600}may order allsuch monitoringwith the appropriateargument to theAdverse personnel
^g/wpersons requiringmay not be used asclearance tomilitary judge inactions may not be
^s^.orsecurity clearancesevidence against theparticipate inopposition to thetaken against
^le^akto cooperate withaccused, M.C.I. No.proceedings. government’s claimdefense attorneys
^://wikiinvestigatorypersonnel in any3, the monitoringcould arguably haveProposed 10 U.S.C. § 949d(e)(4)(D).of privilege. Proposed 10 U.S.C.because of the zealwith which such
^h^ttpinvestigations whicha chilling effect on§ 949d(e)(2).officer, in acting as
are necessary toattorney-clientNo attorney-clientcounsel, represented
obtain the securityconversations,privilege isNo attorney-clientany accused before a
clearance necessarypossibly hamperingmentioned.privilege ismilitary
to participate in thethe ability ofmentioned.commission.…”
proceedings.defense counsel toAdverse personnelAdverse personnelProposed 10 U.S.C.
Mil. R. Evid.provide effectiveactions may not beactions may not be§ 949b.

505(g).representation. taken againsttaken against
defense attorneysdefense attorneys
because of the zealbecause of the zeal

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
The attorney-clientwith which suchwith which such
privilege is honored. officer, in acting asofficer, in acting as
Mil. R. Evid. 502.counsel, representedcounsel, represented
any accused beforeany accused before a
a militarymilitary
commission.…” commission…”
Proposed 10 U.S.C.Proposed 10 U.S.C.
ⁱ^{ki/CRS-RL31600}§ 949b.§ 949b(b).
^g/wt toThe right toProbably notCharges andArticle 32, UCMJ,Article 32, UCMJ,Charges and
^s^.ortmentindictment by grandapplicable tospecificationshearings arehearings arespecifications
^le^akjury is explicitlymilitaryagainst an accusedexpressly madeexpressly madeagainst an accused
^://wikitment excluded in “casesarising in the land orcommissions,provided theare to be signed by aperson subject toinapplicable. Proposed 10 U.S.C.inapplicable. Proposed 10 U.S.C.are to be signed by aperson subject to
^h^ttpnaval forces.”accused is an enemyUCMJ swearingUCMJ swearing
§ 948b(c).§ 948b(c).
Amendment V.belligerent. under oath that theunder oath that the
See Ex parte Quirin,signer has “personalCharges andCharges andsigner has “personal
However, a process317 U.S. 1 (1942).knowledge of, orspecificationsspecificationsknowledge of, or
similar to a grandreason to believe,against an accusedagainst an accusedreason to believe,
jury is required byThe Office of thethe matters set forthare to be signed by aare to be signed by athe matters set forth
article 32, UCMJ. Chief Prosecutortherein,” and thatperson subject toperson subject totherein;” and that
10 U.S.C. § 832. prepares charges forthey are “true in factUCMJ swearingUCMJ swearingthey are “true in fact
referral by theto the best of hisunder oath that theunder oath that theto the best of his
Appointingknowledge andsigner has “personalsigner has “personalknowledge and

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
Whenever anAuthority. belief.” Theknowledge of, orknowledge of, orbelief.” The
offense is alleged,§ 4(B). accused is to bereason to believe,reason to believe,accused is to be
the commander isThere is noinformed of thethe matters set forththe matters set forthinformed of the
responsible forrequirement for ancharges andtherein;” and thattherein;” and thatcharges and
initiating aimpartialspecificationsthey are “true in factthey are “true in factspecifications
preliminary inquiryinvestigation prioragainst him as soonto the best of histo the best of hisagainst him as soon
and deciding how toto a referral ofas practicable afterknowledge andknowledge andas practicable after
ⁱ^{ki/CRS-RL31600}dispose of thecharges. Thecharges are sworn. belief.” Thebelief.” Thecharges are sworn.
^g/woffense.Commission mayProposed 10 U.S.C. accused is to beaccused is to beProposed 10 U.S.C.
^s^.orR.C.M. 303-06.adjust a charged§ 948q.informed of theinformed of the§ 948q.
^le^akThe accused mustoffense in a mannercharges andcharges and
^://wikibe informed of thecharges as soon asthat does not changethe nature orspecificationsagainst him as soonspecificationsagainst him as soon
^h^ttppracticable.increase theas practicable afteras practicable after
Art. 30, UCMJ, 10seriousness of thecharges are sworn. charges are sworn.
U.S.C. § 830.charge. § 6(F).Proposed 10 U.S.C.Proposed 10 U.S.C.
§ 948q.§ 948q.
t toCharges andspecifications mustCopies of approvedcharges are providedThe trial counselassigned isThe trial counselassigned isThe trial counselassigned isThe trial counselassigned is
atement ofbe signed under oathand made known toto the accused andDefense Counsel inresponsibility forserving counsel aresponsibility forserving counsel aresponsibility forserving counsel aresponsibility forserving counsel a
the accused as soonEnglish and anothercopy of the chargescopy of the chargescopy of the chargescopy of the charges

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
as practicable. Art.language theupon the accused, inupon the accused, inupon the accused, inupon the accused, in
30, UCMJ, 10accusedEnglish and, ifEnglish and, ifEnglish and, ifEnglish and, if
U.S.C. § 830.understands, ifappropriate, inappropriate, inappropriate, inappropriate, in
appropriate. § 5(A). another languageanother languageanother languageanother language
that the accusedthat the accusedthat the accusedthat the accused
understands, understands, understands, understands,
“sufficiently in“sufficiently in“sufficiently in“sufficiently in
ⁱ^{ki/CRS-RL31600}advance of trial toadvance of trial toadvance of trial toadvance of trial to
^g/wprepare a defense.”prepare a defense.” prepare a defense.” prepare a defense.”
^s^.orProposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C.
^le^ak§ 948s.§ 948s.§ 948s.§948s.
^://wiki
^h^ttpThe presence of theThe accused may beThe military judgeThe accused may beThe accused has theThe military judge
t to beaccused is requiredpresent at everymay prevent theexcluded fromright to be present atmay prevent the
t atduring arraignment,stage of trial beforeaccused fromattending portions ofall sessions of theaccused from
ial at the plea, and atthe Commissionattending a portionthe proceeding if themilitary commissionattending a portion
every stage of theunless the Presidingof the trial onlymilitary judgeexcept deliberationof the trial only after
court-martial unlessOfficer excludes theafter specificallydetermines that theor voting, unlessspecifically finding
the accused waivesaccused because offinding that theaccused persists inexclusion of thethat the exclusion of
the right bydisruptive conductexclusion of thedisruptive oraccused is permittedthe accused is
voluntarilyor for securityaccused is necessarydangerous conduct.under § 949d.necessary to prevent
absenting him orreasons, or “anyto preventProposed 10 U.S.C. Proposed 10 U.S.C.“identifiable

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
herself from theother reason“identifiable§ 949d(d).§ 949a(b)(2)(B).damage to the
proceedings afternecessary for thedamage to thenational security,
the arraignment orconduct of a full andnational security,The accused may beincluding [by
by persisting infair trial.” including [byexcluded fromdisclosing]
conduct that justifies§§ 4(A)(5)(a); 5(K); disclosing]attending portions ofintelligence or law
the trial judge in6B(3).intelligence or lawthe proceeding if theenforcement
ordering theenforcementmilitary judgesources, methods, or
ⁱ^{ki/CRS-RL31600}removal of thesources, methods, or determines that theactivities”; or is
^g/waccused from theactivities”; or isaccused persists in“necessary to ensure
^s^.orproceedings.“necessary to ensuredisruptive orthe physical safety
^le^akR.C.M. 801.the physical safetydangerous conduct.of individuals”; or is
^://wikiThe governmentmay introduceof individuals”; or isnecessary “toProposed 10 U.S.C. § 949d(d).necessary “toprevent disruption
^h^ttpredacted orprevent disruptionof the proceedings
summarizedof the proceedingsProposed § 949d(e)by the accused”; and
versions of evidenceby the accused”;(introduction ofthe exclusion of the
to be substituted forand the exclusion ofclassifiedaccused “is no
classifiedthe accused “is noinformation) doesbroader than
informationbroader thannot expressly permitnecessary”; and
properly claimednecessary”; andthe exclusion of the“will not deprive the
under privilege, but“will not deprive theaccused from anyaccused of a full and
there is no provisionaccused of a full andportion of the trial,fair trial.” Proposed
that would allowfair trial.” Proposedbut does not10 U.S.C. § 949d.

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court-martial10 U.S.C. § 949d.expressly preclude
members (other thanit, and mandates that
the non-votingthe military judge
military judge) to“take suitable action
view evidence thatto safeguard ...
is not seen by theclassified
accused. Mil. R.information,” which
ⁱ^{ki/CRS-RL31600}Evid. 505.“may include the
^g/wreview of trial
^s^.orcounsel’s claim of
^le^akprivilege by the
^://wikimilitary judge incamera and on an ex
^h^ttpparte basis,” and the
“delaying of
procedures to permit
trial counsel to
consult with the
department or
agency
concerned....” The
Secretary of
Defense may

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
prescribe additional
regulations
“consistent with this
section.” Proposed

10 U.S.C. § 949d(e).

ⁱ^{ki/CRS-RL31600}ohibitionCourts-martial willNot provided, butCrimes punishableCrimes punishableCrimes punishableCrimes punishable
^g/wnot enforce an exmay be implicit inby militaryby militaryby militaryby military
^s^.orst Factopost facto law,restrictions oncommissions undercommissions undercommissions undercommissions under
^le^akincluding increasingjurisdiction overthe new chapter arethe new chapter arethe new chapter arethe new chapter are
es amount of pay to beoffenses. See §contained incontained incontained incontained in
^://wikiforfeited for specific3(B). subchapter VII. Itsubchapter VII. Itsubchapter VII. Itsubchapter VII. It
^h^ttpcrimes.includes the crimeincludes the crimeincludes the crimeincludes the crime
Unite States v.M.C.I. No. 2 § 3(A)of conspiracy,of conspiracy,of conspiracy,of conspiracy,
Gorki, 47 M.J. 370provides that “nowhich a plurality ofwhich a plurality ofwhich a plurality ofwhich a plurality of
(1997).offense isthe Supreme Courtthe Supreme Courtthe Supreme Courtthe Supreme Court
cognizable in a trialin Hamdan v.in Hamdan v.in Hamdan v.in Hamdan v.
by militaryRumsfeld viewed asRumsfeld viewed asRumsfeld viewed asRumsfeld viewed as
commission if thatinvalid as a charge invalid as a chargeinvalid as a chargeinvalid as a charge
offense did not existof war crimes.of war crimes.of war crimes.of war crimes.
prior to the conduct126 S.Ct. 2749126 S.Ct. 2749126 S.Ct. 2749126 S.Ct. 2749
in question.”(2006).(2006). (2006).(2006).

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MartialNo. 1 (M.C.O.)
The bill declaresThe bill declaresThe bill declares
that it “codif[ies]that it “codif[ies]that it “codif[ies]
offenses that haveoffenses that haveoffenses that have
traditionally beentraditionally beentraditionally been
triable by militarytriable by militarytriable by military
commissions,” andcommissions,” andcommissions,” and
that “because thethat it “does notthat it “does not
ⁱ^{ki/CRS-RL31600}[the defined crimes]establish new crimesestablish new crimes
^g/w(includingthat did not existthat did not exist
^s^.orprovisions thatbefore itsbefore its
^le^ak i n corporat e establishment.” establishment.”
^://wikidefinitions in otherprovisions of law)Proposed 10 U.S.C.§ 950bb.Proposed 10 U.S.C.§ 950p.

^h^ttpare declarative of
existing law, they
do not preclude trial
for crimes that
occurred before the
date of enactment.”
Proposed 10 U.S.C.
§ 950p.

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
The bill expressly
provides jurisdiction
over the defined
crimes, whether
committed prior to,
on or after
September 11,
ⁱ^{ki/CRS-RL31600}2001. Proposed 10
^g/wU.S.C. § 948d.
^s^.orotectionDouble jeopardyThe accused may“No person may,“No person may,“No person may,“No person may,
^le^akclause applies. not be tried again bywithout his consent,without his consent,without his consent,without his consent,
^://wikiubleSee Wade v. Hunter,336 US 684, 688-89any Commission fora charge once abe tried by acommission abe tried by acommission abe tried by acommission abe tried by acommission a
^h^ttp (1949). Commission’ssecond time for thesecond time for thesecond time for thesecond time for the
Art. 44, UCMJfinding becomessame offense.”same offense.”same offense.”same offense.”
prohibits doublefinal. (JeopardyJeopardy attachesJeopardy attachesJeopardy attachesJeopardy attaches
jeopardy, providesappears to attachwhen a guiltywhen a guiltywhen a guiltywhen a guilty
for jeopardy towhen the findingfinding becomesfinding becomesfinding becomesfinding becomes
attach afterbecomes final, atfinal after review offinal after review offinal after review offinal after review of
introduction ofleast with respect tothe case has beenthe case has beenthe case has beenthe case has been
evidence.subsequent U.S.fully completed. fully completed. fully completed. fully completed.

10 U.S.C. § 844.militaryProposed 10 U.S.C.Proposed 10 U.S.C.Proposed 10 U.S.C.Proposed 10 U.S.C.

General court-commissions.)§ 949h.§ 949h.§ 949h.§ 949h.

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martial proceeding§ 5(P). The conveningThe conveningThe conveningThe convening
is considered to be aauthority may notauthority may notauthority may notauthority may not
federal trial forHowever, althoughrevise findings orrevise findings orrevise findings orrevise findings or
double jeopardya finding of Notorder a rehearing inorder a rehearing inorder a rehearing inorder a rehearing in
purposes. DoubleGuilty by theany case toany case toany case toany case to
jeopardy does notCommission mayreconsider a findingreconsider a findingreconsider a findingreconsider a finding
result from chargesnot be changed toof not guilty of anyof not guilty of anyof not guilty of anyof not guilty of any
ⁱ^{ki/CRS-RL31600}brought in state orGuilty, either the specification or aspecification or aspecification or aspecification or a
^g/wforeign courts,reviewing panel, theruling whichruling whichruling whichruling which
^s^.oralthough court-Appointingamounts to a findingamounts to a findingamounts to a findingamounts to a finding
^le^akmartial in such casesAuthority, theof not guilty, orof not guilty, orof not guilty, orof not guilty, or
^://wikiis disfavored.U. S. v. Stokes, 12Secretary ofDefense, or thereconsider a findingof not guilty of anyreconsider a findingof not guilty of anyreconsider a findingof not guilty of anyreconsider a findingof not guilty of any
^h^ttpM.J. 229 (C.M.A.President may returncharge, unless therecharge, unless therecharge, unless therecharge, unless there
1982).the case for “furtherhas been a findinghas been a findinghas been a findinghas been a finding
proceedings” priorof guilty under aof guilty under aof guilty under aof guilty under a
Once militaryto the findings’specification laidspecification laidspecification laidspecification laid
authorities havebecoming final. If aunder that charge,under that charge,under that charge,under that charge,
turned servicefinding of Notwhich sufficientlywhich sufficientlywhich sufficientlywhich sufficiently
member over toGuilty is vacatedalleges a violation. alleges a violation. alleges a violation. alleges a violation.
civil authorities forand retried, doubleThe conveningThe conveningThe conveningThe convening
trial, military mayjeopardy may beauthority may notauthority may notauthority may notauthority may not
have waivedimplicated. increase the severityincrease the severityincrease the severityincrease the severity

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
jurisdiction for thatThe order does notof the sentenceof the sentenceof the sentenceof the sentence
crime, although itspecify whether aunless the sentenceunless the sentenceunless the sentenceunless the sentence
may be possible toperson already triedprescribed for theprescribed for theprescribed for theprescribed for the
charge theby any other courtoffense isoffense isoffense isoffense is
individual foror tribunal may bemandatory.mandatory.mandatory. mandatory.
another crimetried by a militaryProposed 10 U.S.C.Proposed 10 U.S.C.Proposed 10 U.S.C.Proposed 10 U.S.C.
arising from thecommission under§ 950b(d)(2)(B).§ 950b(d)(2)(B).§ 950b(d)(2)(B).§ 950b(d)(2)(B).

ⁱ^{ki/CRS-RL31600}same conduct. the M.O. The M.O.
^g/wSee 54 A^M.J^UR.2^D,reserves for the
^s^.orMilitary and CivilPresident the
^le^akDefense §§ 227-28.authority to direct
^://wikithe Secretary ofDefense to transfer
^h^ttpan individual subject
to the M.O. to
another
governmental
authority, which is
not precluded by the
order from
prosecuting the
individual. This
subsection could be

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read to authorize
prosecution by
federal authorities
after the individual
was subject to trial
by military
commission,
ⁱ^{ki/CRS-RL31600}although a federal
^g/wcourt would likely
^s^.ordismiss such a case
^le^akon double jeopardy
^://wikigrounds.M.O. § 7(e).
^h^ttp
eedy &In general, accusedmust be brought toThe Commission isrequired to proceedThere is no right toa speedy trial,There is no right toa speedy trial. There is no right toa speedy trial. There is no right toa speedy trial,
Trial trial within 120 daysexpeditiously,although theArticle 10, UCMJ,Article 10, UCMJ,although the
of the preferral of“preventing anymilitary judge may10 U.S.C. § 810, is10 U.S.C. § 810, ismilitary judge may
charges or theunnecessaryexclude evidence toexpressly madeexpressly madeexclude evidence to
imposition ofinterference oravoid unnecessaryinapplicable toinapplicable toavoid unnecessary
restraint, whicheverdelay.” delay. Proposed 10militarymilitarydelay. Proceedings
date is earliest.§ 6(B)(2). U.S.C. § 949a.commissions.commissions.are to be open to the
R.C.M. 707(a).Failure to meet aProposed 10 U.S.C.Proposed 10 U.S.C.public except where

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MartialNo. 1 (M.C.O.)
The right to a publicspecified deadlineThe military judge§ 948b(c).§ 948b(c).the military judge
trial applies indoes not create amay close all or partdetermines that
courts-martial but isright to relief. § 10.of a trial to theProcedural rules areProcedural rules areclosure of all or part
not absolute. public only afterto provide for theto provide for theof a proceeding is
R.C.M. 806.The rules do notmaking aright of the accusedright of the accusednecessary “to
The military trialprohibit detentiondetermination thatto suppress evidenceto suppress evidenceprotect information
judge may excludewithout charge, orsuch closure isthat would causethat would causethe disclosure of
ⁱ^{ki/CRS-RL31600}the public fromrequire charges to benecessary to protectundue delay. undue delay. which could
^g/wportions of abrought within ainformation, theProposed 10 U.S.C.Proposed 10 U.S.C.reasonably be
^s^.orproceeding for thespecific time period.disclosure of which§ 949a.§ 949a.expected to cause
^le^akpurpose ofProceedings “shouldwould be harmful toidentifiable damage
^://wikiprotecting classifiedinformation if thebe open to themaximum extentnational securityinterests or to theThe military judgemay close all or partThe military judgemay close all or partto the public interestor the national
^h^ttpprosecutionpossible,” but thephysical safety ofof a trial to theof a trial to thesecurity, including
demonstrates anAppointingany participant. public only afterpublic only afterintelligence or law
overriding need toAuthority has broadProposed 10 U.S.C.making amaking aenforcement
do so and thediscretion to close§ 949d.determination thatdetermination thatsources, methods, or
closure is nohearings, and maysuch closure issuch closure isactivities” or “to
broader thanexclude the publicnecessary to protectnecessary to protectensure the physical
necessary.or accredited press information, theinformation, thesafety of
United States v.from opendisclosure of whichdisclosure of whichindividuals.”
Grunden, 2 M.J. 116proceedings. would be harmful towould be harmful toProposed 10 U.S.C.
(CMA 1977); Mil.§ 6(B)(3).national securitynational security§ 949d.

R. Evid. 505(j).interests or to theinterests or to the

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physical safety ofphysical safety of
any participant. any participant.
Proposed 10 U.S.C. Proposed 10 U.S.C.
§ 949d.§ 949d(c).
rden &Members of courtmartial must beCommissionmembers may voteCommissionmembers are to beCommissionmembers are to beCommissionmembers are to beCommissionmembers are to be
andard ofinstructed that thefor a finding ofinstructed that theinstructed that theinstructed that theinstructed that the
ⁱ^{ki/CRS-RL31600}oof
^g/wburden of proof toguilty only ifaccused is presumedaccused is presumedaccused is presumedaccused is presumed
^s^.orestablish guilt isconvinced beyond ato be innocent untilto be innocent untilto be innocent untilto be innocent until
^le^akupon thereasonable doubt,his “guilt ishis “guilt ishis “guilt ishis “guilt is
^://wikigovernment and thatany reasonablebased on evidenceadmitted at trial, thatestablished by legaland competentestablished by legaland competentestablished by legaland competentestablished by legaland competent
^h^ttpdoubt must bethe accused isevidence beyondevidence beyondevidence beyondevidence beyond
resolved in favor ofguilty.reasonable doubt”;reasonable doubt”;reasonable doubt”;reasonable doubt”;
the defendant. §§ 5(C); 6(F).that any reasonablethat any reasonablethat any reasonablethat any reasonable
R.C.M. 920(e).doubt as to the guiltdoubt as to the guiltdoubt as to the guiltdoubt as to the guilt
The burden of proofof the accused mustof the accused mustof the accused mustof the accused must
of guilt is on thebe “resolved inbe “resolved inbe “resolved inbe “resolved in
prosecution, § 5(C);favor of the accusedfavor of the accusedfavor of the accusedfavor of the accused
however, M.C.I. No.and he must beand he must beand he must beand he must be
2 states that elementacquitted”; thatacquitted”; thatacquitted”; thatacquitted”; that
of wrongfulness ofreasonable doubt asreasonable doubt asreasonable doubt asreasonable doubt as
an offense is to beto the degree ofto the degree of guilt to the degree of guilt to the degree of guilt

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inferred absentguilt must bemust be resolved inmust be resolved inmust be resolved in
evidence to theresolved in favor offavor of the lowerfavor of the lowerfavor of the lower
contrary. M.C.I.the lower degree asdegree as to whichdegree as to whichdegree as to which
No. 2 § 4(B).to which there is nothere is nothere is nothere is no
reasonable doubt;reasonable doubt;reasonable doubt;reasonable doubt;
and that the burdenand that the burdenand that the burdenand that the burden
of proof is upon theof proof is upon theof proof is upon theof proof is upon the
ⁱ^{ki/CRS-RL31600}United States. United States. United States. United States.
^g/wProposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C.Proposed 10 U.S.C.
^s^.or§ 949l § 949l.§ 949l.§ 949l.
^le^ak
^://wikiTwo-thirds of themembers mustTwo-thirds of themembers mustTwo-thirds of themembers mustTwo-thirds of themembers must
^h^ttpconcur on a findingconcur on a findingconcur on a findingconcur on a finding
of guilty, except inof guilty, except inof guilty, except inof guilty, except in
capital cases.capital cases. capital cases. capital cases, in
Proposed 10 U.S.C.Proposed 10 U.S.C.Proposed 10 U.S.C.which case the
§ 949m.§ 949m.§ 949m.verdict must be
unanimous.
Proposed 10 U.S.C.
§ 949m.
The military judgeThe procedural rulesThe procedural rules“The military judge
is to exclude anyare to provide forare to provide forshall exclude any

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
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evidence thethe exclusion of anythe exclusion of anyevidence the
probative value ofevidence theevidence theprobative value of
which isprobative value ofprobative value ofwhich is
substantiallywhich iswhich issubstantially
outweighed by thesubstantiallysubstantiallyoutweighed by the
danger of unfairoutweighed by theoutweighed by thedanger of unfair
prejudice, confusiondanger of unfairdanger of unfairprejudice, confusion
ⁱ^{ki/CRS-RL31600}of the issues, orprejudice, confusionprejudice, confusionof the issues, or
^g/wmisleading theof the issues, orof the issues, ormisleading the
^s^.ormembers of themisleading themisleading themembers of the
^le^akcommission, or bymembers of themembers of thecommission, or by
^://wikiconsiderations ofundue delay, wastecommission, or byconsiderations ofcommission, or byconsiderations ofconsiderations ofundue delay, waste
^h^ttpof time, or needlessundue delay, wasteundue delay, wasteof time, or needless
presentation ofof time, or needlessof time, or needlesspresentation of
cumulativepresentation ofpresentation ofcumulative
evidence. Proposedcumulativecumulativeevidence.”

10 U.S.C. § 949a.evidence. Proposedevidence. ProposedProposed 10 U.S.C.

10 U.S.C. § 949a.10 U.S.C. § 949a.§ 949a.

ivilegeNo person subject tothe UCMJ mayThe accused is notrequired to testify,“No person shall berequired to testify“No person shall berequired to testify“No person shall berequired to testify“No person shall berequired to testify
Self-compel any personand the commissionagainst himself at aagainst himself at aagainst himself at aagainst himself at a
crimination to answermay draw nocommissioncommission

commission commission

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incriminatingadverse inferenceproceeding.” proceeding.” proceeding.” proceeding.”
questions. Art. 31(a)from, a refusal toProposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C.
UCMJ, 10 U.S.C. §testify. § 948r.§ 948r.§ 948r.§ 948r.

831(a). § 5(F).

Adverse inferencesAdverse inferencesAdverse inferencesAdverse inferences
Defendant may notHowever, there is nodrawn from a failuredrawn from a failuredrawn from a failuredrawn from a failure
be compelled torule against the useto testify are notto testify are notto testify are notto testify are not
ⁱ^{ki/CRS-RL31600}give testimony thatof coercedexpresslyexpresslyexpresslyexpressly
^g/wis immaterial orstatements asprohibited;prohibited; however,prohibited; however,prohibited; however,
^s^.orpotentiallyevidence. however, membersmembers are to bemembers are to bemembers are to be
^le^akdegrading. There is no specificare to be instructedinstructed that “theinstructed that “theinstructed that “the
^://wikiArt. 31(c), UCMJ,10 U.S.C. § 831(c).provision forimmunity ofthat “the accusedmust be presumedaccused must bepresumed to beaccused must bepresumed to beaccused must bepresumed to be
^h^ttpwitnesses to preventto be innocent untilinnocent until hisinnocent until hisinnocent until his
No adversetheir testimony fromhis guilt isguilt is establishedguilt is establishedguilt is established
inference is to bebeing used againstestablished by legalby legal andby legal andby legal and
drawn from athem in anyand competentcompetentcompetentcompetent
defendant’s refusalsubsequent legalevidence” Proposedevidence.” Proposedevidence.” Proposedevidence.”
to answer anyproceeding;10 U.S.C. § 949l.10 U.S.C. § 949l.10 U.S.C. § 949l.Proposed 10 U.S.C.
questions or testifyhowever, under 18§ 949l.
at court-martial. U.S.C. §§ 6001 et
Mil. R. Evid. 301(f).seq., a witnessThere does notThere does notThere does notThere appears to be
Witnesses may notrequired by aappear to be aappear to be aappear to be ano specific
be compelled tomilitary tribunal toprovision forprovision forprovision forprovision for

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MartialNo. 1 (M.C.O.)
give testimony thatgive incriminatingimmunity ofimmunity ofimmunity ofimmunity of
may betestimony iswitnesses.witnesses.witnesses.witnesses to prevent
incriminating unlessimmune fromtheir testimony from
granted immunityprosecution in anybeing used against
for that testimonycriminal case, otherthem in any
by a general court-than for perjury,subsequent legal
martial conveninggiving falseproceeding.
ⁱ^{ki/CRS-RL31600}authority, asstatements, or
^g/wauthorized by theotherwise failing to
^s^.orAttorney General, ifcomply with the
^le^akrequired. 18 U.S.C.order. 18 U.S.C.
^://wiki§ 6002; R.C.M. 704.§§6002; 6004.
^h^ttp
t toHearsay rules applyas in federal court. Defense Counselmay cross-examine“Defense counselmay cross-examine“Defense counselmay cross-examine“Defense counselmay cross-examine“Defense counselmay cross-examine
ine orMil. R. Evid. 801 etthe prosecution’seach witness for theeach witness for theeach witness for theeach witness for the
inedseq. In capital cases,witnesses whoappear before theprosecution whotestifies before theprosecution whotestifies before theprosecution whotestifies before theprosecution whotestifies before the
versesworn depositionsCommission. § 5(I).commission.” commission.”commission.”commission.”
may not be used in Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C.Proposed 10 U.S.C.
lieu of witness,However, the§ 949c.§ 949c.§ 949c.§ 949c.
unless court-martialCommission may
is treated as non-also permitThe accused may beIn the case ofIn the case ofThe accused may be

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capital or it iswitnesses to testifyexcluded fromclassifiedclassifiedexcluded from
introduced by theby telephone orhearing testimonyinformation, theinformation, thehearing testimony
defense.other means notthat is classified ifmilitary judge maymilitary judge maythat is classified if
Art. 49, UCMJ, 10requiring thethe military judgeauthorize theauthorize thethe military judge
U.S.C. § 849.presence of thefinds that “angovernment togovernment tofinds that “an
The governmentwitness at trial, inunclassifieddelete specifieddelete specifiedunclassified
may claim awhich case cross-summary orportions of evidenceportions of evidencesummary or
ⁱ^{ki/CRS-RL31600}privilege not toexamination may beredacted version ofto be made availableto be made availableredacted version of
^g/wdisclose classifiedimpossible.that evidence wouldto the accused, orto the accused, orthat evidence would
^s^.orevidence to the§ 6(D)(2). not be an adequatemay allow anmay allow annot be an adequate
^le^akaccused, and thesubstitute and …unclassifiedunclassifiedsubstitute and …
^://wikimilitary judge mayauthorize theIn the case of closedproceedings oralternative methodsto obscure thesummary orstatement settingsummary orstatement settingalternative methodsto obscure the
^h^ttpdeletion of specifiedclassified evidence,identity of theforth the facts theforth the facts theidentity of the
items of classifiedonly the detailedwitness are notevidence would tendevidence would tendwitness are not
information,defense counsel mayadequate.” to prove, to theto prove, to theadequate.”
substitute a portionbe permitted toProposed 10 U.S.C. extent practicable inextent practicable inProposed 10 U.S.C.
or summary, orparticipate. Hearsay§ 949d(e)(3).accordance with theaccordance with the§ 949d(e)(3)(B)(4).

statement admittingevidence isrules used at generalrules used at general
relevant facts thatadmissible as longcourts-martial. courts-martial.
the evidence wouldas the CommissionProposed 10 U.S.C. Proposed 10 U.S.C.
tend to prove, unlessdetermines it would§ 949d(c)(3)(C).§ 949d(c)(3)(C).
the military judgehave probative value
determines thatto a reasonable

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
disclosure ofperson. § 6(D)(1).Hearsay evidence
classified not admissible under
information itself isThe Commissionthe rules of evidence
necessary to enablemay considerapplicable in trial by
the accused totestimony from priorgeneral courts-
prepare for trial.trials as well asmartial is admissible
Mil. R. Evid.sworn and unswornonly “if the
ⁱ^{ki/CRS-RL31600}505(g).written statements,proponent of the
^g/wapparently withoutevidence makes
^s^.orregard to theknown to the
^le^akavailability of theadverse party,
^://wikideclarant, inapparentsufficiently inadvance to provide
^h^ttpcontradiction withthe adverse party
10 U.S.C. § 849.with a fair
§ 6(D)(3).opportunity to meet
the evidence, the
proponent’s
intention to offer the
evidence, and the
particulars of the
evidence (including
information on the
general

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
circumstances under
which the evidence
was obtained)”
unless the party
opposing the
admission of the
evidence “clearly
ⁱ^{ki/CRS-RL31600}demonstrates that
^g/wthe evidence is
^s^.orunreliable or lacking
^le^akin probative value.”
^://wikiProposed 10 U.S.C.§ 949a(b)(3).
^h^ttp
If trial counsel seeks
to claim a privilege
to withhold
classified
information, the
military judge may
require that the
defense be permitted
to view an
unclassified

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
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summary of the
sources, methods, or
activities by which
the United States
acquired the
evidence, to the
extent practicable
ⁱ^{ki/CRS-RL31600}and consistent with
^g/wnational security. It
^s^.ordoes not appear that
^le^akthe accused is
^://wikipermitted to presentargument to the
^h^ttpmilitary judge in
opposition to the
government’s claim
of privilege.
Proposed 10 U.S.C.
§ 949d(e)(2).
t toDefendants beforecourt-martial haveThe accused mayobtain witnesses andDefense counsel isto be afforded aDefense counsel isto be afforded aDefense counsel isto be afforded aDefense counsel isto be afforded a
mpulsorythe right to compeldocuments “to thereasonablereasonablereasonablereasonable

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
ocess toappearance ofextent necessary andopportunity toopportunity toopportunity toopportunity to
witnesses necessaryreasonably availableobtain witnessesobtain witnesses andobtain witnesses andobtain witnesses and
to their defense. as determined by theand other evidence,other evidence,other evidence,other evidence,
R.C.M. 703.Presiding Officer.” including evidenceincluding evidenceincluding evidenceincluding evidence
§ 5(H). in the possession ofin the possession ofin the possession ofin the possession of
Process to compelthe United States, asthe United States, asthe United States, asthe United States, as
witnesses in court-The Commissionspecified inspecified inspecified inspecified in
ⁱ^{ki/CRS-RL31600}martial cases is to behas the power toregulationsregulationsregulationsregulations
^g/wsimilar to thesummon witnessesprescribed by theprescribed by theprescribed by theprescribed by the
^s^.orprocess used inas requested by theSecretary ofSecretary ofSecretary ofSecretary of
^le^akfederal courts.defense. § 6(A)(5). Defense. TheDefense. TheDefense. TheDefense. The
^://wikiArt. 46, UCMJ, 10U.S.C. § 846.The power to issuemilitarycommission ismilitary commissionis authorized tomilitary commissionis authorized tomilitary commissionis authorized to
^h^ttpsubpoenas isauthorized tocompel witnessescompel witnessescompel witnesses
exercised by thecompel witnessesunder U.S.under U.S.under U.S.
Chief Prosecutor;under U.S.jurisdiction tojurisdiction tojurisdiction to
the Chief Defensejurisdiction toappear. Trialappear. Theappear. The military
Counsel has no suchappear. Thecounsel is obligatedmilitary judge mayjudge may authorize
authority. M.C.I.military judge mayto disclose to theauthorize discoverydiscovery in
Nos. 3-4.authorize discoverydefense all knownin accordance withaccordance with
in accordance withevidence that tendsrules prescribed byrules prescribed by
rules prescribed byto exculpate orthe Secretary ofthe Secretary of
the Secretary ofreduce the degree ofDefense to redactDefense to redact
Defense to redactguilt of the accused,classifiedclassified

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classifiedtreating classifiedinformation or toinformation or to
information or toinformation inprovide anprovide an
provide anaccordance withunclassifiedunclassified
unclassifiedrules that apply atsummary orsummary or
summary orgeneral court-statement describingstatement describing
statement describingmartial. Proposedthe evidence. Thethe evidence. The
the evidence. The10 U.S.C. § 949j.trial counsel istrial counsel is
ⁱ^{ki/CRS-RL31600}trial counsel isobligated to discloseobligated to disclose
^g/wobligated to discloseexculpatoryexculpatory
^s^.orexculpatoryevidence of whichevidence of which
^le^akevidence of whichhe is aware to thehe is aware to the
^://wikihe is aware to thedefense, but suchdefense, but suchinformation, ifdefense, but suchinformation, if
^h^ttpinformation, ifclassified, isclassified, is
classified, isavailable to theavailable to the
available to theaccused only in aaccused only in a
accused only in aredacted orredacted or
redacted orsummary form, andsummary form, and
summary form, andonly if making theonly if making the
only if making theinformationinformation
informationavailable is possibleavailable is possible
available is possiblewithoutwithout
without compromising compromising
compromisingintelligence sources,intelligence sources,

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intelligence sources,methods, ormethods, or
methods, oractivities, or otheractivities, or other
activities, or othernational securitynational security
national securityinterests. Proposedinterests. Proposed
interests. Proposed10 U.S.C. § 949j.10 U.S.C. § 949j.

10 U.S.C. § 949j.

ⁱ^{ki/CRS-RL31600}t to TrialA qualified militaryThe PresidingMilitary judgesMilitary judgesMilitary judgesMilitary judges
^g/wpartialjudge is detailed toOfficer is appointedmust take an oath tomust take an oath tomust take an oath tomust take an oath to
^s^.orpreside over thedirectly by theperform their dutiesperform their dutiesperform their dutiesperform their duties
^le^akcourt-martial. TheAppointingfaithfully. Proposedfaithfully. Proposedfaithfully. Proposedfaithfully. Proposed
^://wikiconvening authoritymay not prepare orAuthority, whichdecides all10 U.S.C. § 949g.10 U.S.C. § 949g.10 U.S.C. § 949g.10 U.S.C. § 949g.
^h^ttpreview any reportinterlocutory issues.
The conveningThe conveningThe conveningThe convening
concerning theThere do not appearauthority isauthority isauthority isauthority is
performance orto be any specialprohibited fromprohibited fromprohibited fromprohibited from
effectiveness of theproceduralpreparing orpreparing orpreparing orpreparing or
military judge.safeguards to ensurereviewing anyreviewing any reportreviewing any reportreviewing any report
Art. 26, UCMJ, 10impartiality, butreport concerningconcerning theconcerning theconcerning the
U.S.C. § 826.challenges for causethe effectiveness,effectiveness,effectiveness,effectiveness,
have beenfitness, or efficiencyfitness, or efficiencyfitness, or efficiencyfitness, or efficiency
Article 37, UCMJ,permitted.of a military judge. of a military judge.of a military judge.of a military judge.
prohibits unlawful§ 4(A)(4).Proposed 10 U.S.C. Proposed 10 U.S.C.Proposed 10 U.S.C.Proposed 10 U.S.C.
influence of courts-§ 948j(a).§ 948j.§ 948j.§ 948j.

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
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martial throughThe presiding judge,A military judge A military judge
admonishment,who decides issuesmay not be assignedA military judgeA military judgemay not be assigned
censure, orof admissibility ofto a case in whichmay not be assignedmay not be assignedto a case in which
reprimand of itsevidence, does nothe is the accuser, anto a case in whichto a case in whichhe is the accuser, an
members by thevote as part of theinvestigator, ahe is the accuser, anhe is the accuser, aninvestigator, a
convening authoritycommission on thewitness, or ainvestigator, ainvestigator, awitness, or a
or commandingfinding of guilt orcounsel. witness, or awitness, or acounsel. The
ⁱ^{ki/CRS-RL31600}officer, or anyinnocence.§ 948j(c).counsel. Thecounsel. Themilitary judge may
^g/wunlawful attempt byArticle 37, UCMJ,The military judgemilitary judge maymilitary judge maynot consult with the
^s^.ora person subject toprovides that nomay not consultnot consult with thenot consult with themembers of the
^le^akthe UCMJ to coerceperson subject to thewith the members ofmembers of themembers of thecommission except
^://wikior influence theaction of a court-UCMJ “may attemptto coerce or, by anythe commissionexcept in thecommission exceptin the presence ofcommission exceptin the presence ofin the presence ofthe accused, trial
^h^ttpmartial or conveningunauthorized means,presence of thethe accused, trialthe accused, trialcounsel, and defense
authority.influence the actionaccused, trialcounsel, and defensecounsel, and defensecounsel, nor may he
Art. 37, UCMJ, 10of a court-martial orcounsel, andcounsel, nor may hecounsel, nor may hevote with the
U.S.C. § 837. any other militarydefense counsel, norvote with thevote with themembers of the
tribunal or anymay he vote withmembers of themembers of thecommission.
member thereof, inthe members of thecommission.commission. § 948j.
reaching thecommission. § 948j. § 948j.
findings or sentence § 948j(d).
in any case, or theNo conveningNo convening
action of anyauthority mayNo conveningNo conveningauthority may
convening,censure, reprimand,authority mayauthority maycensure, reprimand,

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
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approving, oror admonish thecensure, reprimand,censure, reprimand,or admonish the
reviewing authoritymilitary judge withor admonish theor admonish themilitary judge with
with respect to hisrespect to themilitary judge withmilitary judge withrespect to the
judicial acts.”exercise of hisrespect to therespect to theexercise of his
10 U.S.C. § 837.functions in theexercise of hisexercise of hisfunctions in the
conduct of militaryfunctions in thefunctions in theconduct of military
M.C.I. No. 9commissionconduct of militaryconduct of militarycommission
ⁱ^{ki/CRS-RL31600}clarifies that Art. 37proceedings. Nocommissioncommissionproceedings. No
^g/wapplies with respectperson mayproceedings. Noproceedings. Noperson may consider
^s^.orto members of theconsider or evaluateperson may considerperson may consideror evaluate the
^le^akreview panel. MCIthe performance ofor evaluate theor evaluate theperformance of duty
^://wikiNo. 9 § 4(F).duty of any memberof a militaryperformance of dutyof any member of aperformance of dutyof any member of aof any member of amilitary commission
^h^ttpcommission inmilitary commissionmilitary commissionin writing efficiency
writing efficiencyin writing efficiencyin writing efficiencyreports or any other
reports or any otherreports or any otherreports or any otherdocument used for
document used fordocument used fordocument used fordetermining whether
determiningdetermining whetherdetermining whethera commissioned
whether aa commissioneda commissionedofficer of the armed
commissionedofficer of the armedofficer of the armedforces is qualified to
officer of the armedforces is qualified toforces is qualified tobe advanced in
forces is qualified tobe advanced inbe advanced ingrade, assigned or
be advanced ingrade, assigned orgrade, assigned ortransferred, or
grade, assigned ortransferred, ortransferred, orretained on active

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
transferred, orretained on activeretained on activeduty. Proposed 10
retained on activeduty. Proposed 10duty. Proposed 10U.S.C. § 949b.
duty. No personU.S.C. § 949b.U.S.C. § 949b.
may attempt toThe military judge
coerce or useThe military judgeThe military judgemay be challenged
unauthorized meansmay be challengedmay be challengedfor cause. Proposed
to influence thefor cause. Proposedfor cause. Proposed10 U.S.C. § 949f.
ⁱ^{ki/CRS-RL31600}action of a10 U.S.C. § 949f.10 U.S.C. § 949f.
^g/wcommission or
^s^.or convening,
^le^akapproving, or
^://wikireviewing authoritywith respect to
^h^ttpjudicial acts
Proposed 10 U.S.C.
§ 949b.
The military judge
may be challenged
for cause. Proposed

10 U.S.C. § 949f.

t to TrialA military accusedhas no SixthThe commissionmembers areMilitarycommissionMilitarycommissionMilitarycommissionMilitarycommission
partialAmendment right toappointed directlymembers must takemembers must takemembers must takemembers must take
a trial by petit jury.by the Appointingan oath to performan oath to performan oath to performan oath to perform

CRS-86
General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
Ex Parte Quirin,Authority. While thetheir dutiestheir dutiestheir dutiestheir duties
317 U.S. 1, 39-40Commission isfaithfully. Proposedfaithfully. Proposedfaithfully. Proposedfaithfully. Proposed
(1942) (dicta).bound to proceed10 U.S.C. § 949g.10 U.S.C. § 949g.10 U.S.C. § 949g.10 U.S.C. § 949g.
impartially, there do
However, “Congressnot appear to be anyThe accused mayThe accused mayThe accused mayThe accused may
has provided forspecial proceduralmake onemake onemake onemake one
trial by members atsafeguards designedperemptoryperemptoryperemptoryperemptory
ⁱ^{ki/CRS-RL31600}a court-martial.” to ensure theirchallenge, and maychallenge, and maychallenge, and maychallenge, and may
^g/wUnited States v.impartiality. challenge otherchallenge otherchallenge otherchallenge other
^s^.orWitham, 47 MJ 297,However,members for cause. members for cause. members for cause. members for cause.
^le^ak301 (1997); Art. 25,defendants haveProposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C.
^://wikiUCMJ, 10 U.S.C. §825.successfullychallenged members§ 949f.§ 949f.§ 949f.§ 949f.
^h^ttpThe Sixthfor cause. § 6(B).No conveningNo conveningNo conveningNo convening
Amendmentauthority mayauthority mayauthority mayauthority may
requirement that thecensure, reprimand,censure, reprimand,censure, reprimand,censure, reprimand,
jury be impartialor admonish theor admonish theor admonish theor admonish the
applies to court-commission or anycommission or anycommission or anycommission or any
martial membersmember withmember withmember withmember with
and covers not onlyrespect to therespect to therespect to therespect to the
the selection offindings or sentencefindings or sentencefindings or sentencefindings or sentence
individual jurors,or the exercise ofor the exercise ofor the exercise ofor the exercise of
but also theirany other functionsany other functionsany other functionsany other functions
conduct during thein the conduct of thein the conduct of thein the conduct of thein the conduct of the

CRS-87
General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
trial proceedingsproceedings. Noproceedings. Noproceedings. Noproceedings. No
and the subsequentperson may attemptperson may attemptperson may attemptperson may attempt
deliberations.to coerce or, by anyto coerce or, by anyto coerce or, by anyto coerce or, by any
United States v.unauthorizedunauthorized means,unauthorized means,unauthorized means,
Lambert, 55 M.J.means, influence theinfluence the actioninfluence the actioninfluence the action
293 (2001).action of aof a commission orof a commission orof a commission or
The absence of acommission or anyany member thereof,any member thereof,any member thereof,
ⁱ^{ki/CRS-RL31600}right to trial by jurymember thereof, inin reaching thein reaching thein reaching the
^g/wprecludes criminalreaching thefindings or sentencefindings or sentencefindings or sentence
^s^.ortrial of civilians byfindings or sentencein any case. Militaryin any case. Militaryin any case. Military
^le^akcourt-martial.in any case. Militarycommission dutiescommission dutiescommission duties
^://wikiReid v. Covert, 354U.S. 1 (1957);commission dutiesmay not bemay not beconsidered in themay not beconsidered in themay not beconsidered in the
^h^ttpKinsella v. Unitedconsidered in thepreparation of anpreparation of anpreparation of an
States ex rel.preparation of aneffectiveness,effectiveness,effectiveness,
Singleton, 361 U.S.effectiveness,fitness, or efficiencyfitness, or efficiencyfitness, or efficiency
234 (1960).fitness, or efficiencyreport or any otherreport or any otherreport or any other
report or any otherreport or documentreport or documentreport or document
report or documentused in whole or inused in whole or inused in whole or in
used in whole or inpart for the purposespart for the purposespart for the purposes
part for the purposesrelated torelated torelated to
related topromotion,promotion,promotion,
promotion,assignment orassignment orassignment or
assignment orretention on activeretention on activeretention on active

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retention on activeduty. Proposed 10duty. Proposed 10duty. Proposed 10
duty. Proposed 10U.S.C. § 949b.U.S.C. § 949b.U.S.C. § 949b.
U.S.C. § 949b.
t toThose convicted bycourt-martial haveA review panelappointed by theThe accused maysubmit matters forThe accused maysubmit matters forThe accused maysubmit matters forThe accused maysubmit matters for
al to
pendentan automatic appealto their respectiveSecretary ofDefense reviews theconsideration by theconvening authorityconsideration by theconvening authorityconsideration by theconvening authorityconsideration by theconvening authority
ingservice courts ofrecord of the trial inwith respect to thewith respect to thewith respect to thewith respect to the
ⁱ^{ki/CRS-RL31600}
^g/wappeal, dependinga closed conference,authenticatedauthenticatedauthenticatedauthenticated
^s^.oron the severity ofdisregarding anyfindings or sentencefindings or sentencefindings or sentencefindings or sentence
^le^akthe punishment.procedural variancesof the militaryof the militaryof the militaryof the military
^://wikiArt. 66, UCMJ; 10U.S.C. § 866.that would notmaterially affect thecommission. Theconvening authoritycommission. Theconvening authoritycommission. Theconvening authoritycommission. Theconvening authority
^h^ttp
outcome of the trial,must review timelymust review timelymust review timelymust review timely
Decisions by serviceand recommends itssubmissions prior tosubmissions prior tosubmissions prior tosubmissions prior to
appellate courts aredisposition to thetaking action. taking action. taking action. taking action.
reviewable on aSecretary ofProposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C.
discretionary basisDefense. Although§ 950b.§ 950b.§ 950b.§ 950b.
by the Court ofthe Defense Counsel
Appeals for thehas the duty ofThe accused mayThe accused mayThe accused mayThe accused may
Armed Forcesrepresenting theappeal a finalappeal a finalappeal a finalappeal a final
(CAAF), a civilianinterests of thedecision of thedecision of thedecision of thedecision of the
court composed ofaccused during anymilitarymilitary commissionmilitary commissionmilitary commission
five civilian judgesreview process, thecommission withto the Court of with respect towith respect to

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appointed by thereview panel needrespect to issues ofAppeals for theissues of lawissues of law
President.not consider writtenlaw (meaning onlyArmed Forces on(meaning only the(meaning only the
Art. 67, UCMJ; 10submissions fromthe provisions of thethe basis of mattersprovisions of theprovisions of the
U.S.C. § 867.the defense, nornew chapter 47a offor which appeal isnew chapter 47a ofnew chapter 47a of
CAAF decisions aredoes there appear totitle 10, U.S. Code,permitted under thetitle 10, U.S. Code,title 10, U.S. Code,
subject to Supremebe an opportunity torelated to military§ 1005(e)(3) of therelated to militaryrelated to military
Court review byrebut thecommissions) to theDTA (42 U.S.C. §commissions) to thecommissions) to the
ⁱ^{ki/CRS-RL31600}writ of certiorari.submissions of theCourt of Military801 note), and mayCourt of MilitaryCourt of Military
^g/w28 U.S.C. § 1259.prosecution. If theCommissionseek review by theCommissionCommission
^s^.orThe writ of habeasmajority of theReview, a new bodySupreme Court. Review, a new bodyReview, a new body
^le^akcorpus provides thereview panel formsto be established byProposed 10 U.S.C. to be established byto be established by
^://wikiprimary means bywhich thosea “definite and firmconviction that athe Secretary ofDefense, comprised§ 950f.the Secretary ofDefense, comprisedthe Secretary ofDefense, comprised
^h^ttpsentenced bymaterial error of lawof appellate militaryof appellate militaryof appellate military
military court,occurred,” it mayjudges who meet thejudges who meet thejudges who meet the
having exhaustedreturn the case to thesame qualificationssame qualificationssame qualifications
military appeals, canAppointingas military judges oras military judges oras military judges or
challenge aAuthority for furthercomparablecomparablecomparable
conviction orproceedings. qualifications forqualifications forqualifications for
sentence in a§ 6(H)(4). civilian judges. civilian judges. civilian judges.
civilian court. TheThe review panelProposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C.
scope of matters thatrecommendation§ 950f.§ 950f.§ 950f.

a court will addressdoes not appear to
is narrower than inbe binding. The

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General CourtsMilitaryCommission OrderH.R. 6054S. 3901S. 3930S. 3886/S. 3861
MartialNo. 1 (M.C.O.)
challenges of federalSecretary ofOnce these appealsOnce these appealsOnce these appeals
or state convictions.Defense may serveare exhausted, theare exhausted, theare exhausted, the
Burns v. Wilson,as Appointingaccused may appealaccused may appealaccused may appeal
346 U.S. 137Authority and as thethe final decision tothe final decision tothe final decision to
(1953).final reviewingthe United Statesthe United Statesthe United States
authority, asCourt of AppealsCourt of Appeals forCourt of Appeals for
designated by thefor the District ofthe District ofthe District of
ⁱ^{ki/CRS-RL31600}President. Columbia Circuit. Columbia Circuit. Columbia Circuit.
^g/wAppellate courtAppellate decisionsAppellate decisions
^s^.orAlthough the M.Odecisions may bemay be reviewed bymay be reviewed by
^le^akspecifies that thereviewed by thethe Supreme Courtthe Supreme Court
^://wikiindividual is notprivileged to seekSupreme Courtunder writ ofunder writ ofcertiorari. Proposedunder writ ofcertiorari. Proposed
^h^ttpany remedy in anycertiorari. Proposed10 U.S.C. § 950g.10 U.S.C. § 950g.
U.S. court or state10 U.S.C. § 950g.No action in habeas
court, the court ofcorpus or claimNo action in habeasNo other cause of
any foreign nation,under any cause ofcorpus or claimaction, including
or any internationalaction related to theunder any cause ofpetitions for habeas
tribunal, M.O. §prosecution, trial, oraction related to thecorpus, would be
7(b), Congressjudgment of aprosecution, trial, orpermitted. Proposed
establishedmilitaryjudgment of a10 U.S.C. § 950j.

jurisdiction in thecommission,military
Court of Appeals forincluding challengescommission,
the D.C. Circuit toto the lawfulness ofincluding challenges

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hear challenges tomilitaryto the lawfulness of
final decisions ofcommissions, ismilitary
militarypermissible in anycommissions, is
commissions. court. Proposed 10permissible in any
Detainee TreatmentU.S.C. § 950i.court. Proposed 10
Act of 2005.U.S.C. § 950i.

ⁱ^{ki/CRS-RL31600}
^g/w
^s^.or
^le^ak
^://wiki
^h^ttp

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otectionThe right to appeal aconviction resultingThe accused ispermitted to make aMilitarycommissions mayMilitarycommissions mayMilitarycommissions mayMilitarycommissions may
in a death sentencestatement duringadjudge “anyadjudge “anyadjudge “anyadjudge “any
naltiesmay not be waived.R.C.M. 1110.sentencingprocedures. § 5(M). punishment notforbidden bypunishment notforbidden bypunishment notforbidden bypunishment notforbidden by
Death may only be[proposed chapter[proposed chapter[proposed chapter[proposed chapter
adjudged for certainThe death sentence47a, title 10, U.S.47a, title 10, U.S.47a, title 10, U.S.47a, title 10, U.S.
ⁱ^{ki/CRS-RL31600}crimes where themay be imposedCode, and theCode, and theCode, and theCode], including the
^g/wdefendant is foundonly on theUCMJ], includingUCMJ], includingUCMJ], includingpenalty of death….”
^s^.orguilty by unanimousunanimous vote of athe penalty ofthe penalty ofthe penalty ofProposed 10 U.S.C.
^le^akvote of court-martialseven-memberdeath….” Proposeddeath….” Proposeddeath….” Proposed§ 948d.
^://wikimembers present atthe time of the vote. panel. § 6(F). 10 U.S.C. § 948d.10 U.S.C. § 948d.10 U.S.C. § 948d.
^h^ttpPrior toThe commissionA vote two-thirds ofA vote of two-thirds“Punishment byA vote of two-thirds
arraignment, themay only impose athe membersof the membersflogging, or byof the members
trial counsel mustsentence that ispresent for the votepresent for the votebranding, marking,present for the vote
give the defenseappropriate to theis required foris required foror tattooing on theis required for
written notice ofoffense for whichsentences of up tosentences of up tobody, or any othersentences of up to
aggravating factorsthere was a finding10 years. Longer10 years. Longercruel or unusual10 years. Longer
the prosecutionof guilty, includingsentences requiresentences requirepunishment, maysentences require
intends to prove.death,the concurrence ofthe concurrence ofnot be adjudged by athe concurrence of
R.C.M. 1004.imprisonment, finethree-fourths of thethree-fourths of themilitary commissionthree-fourths of the
A conviction ofor restitution, ormembers present. members present. or inflicted uponmembers present.
spying during time“other such lawfulThe death penaltyThe death penaltyany person subjectThe death penalty

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of war under articlepunishment ormust be approvedmust be approvedto this chapter. Themust be approved

106, UCMJ, carriescondition ofunanimously.unanimously.use of irons, singleunanimously.

a mandatory deathpunishment as theWhere the deathWhere the deathor double, except forWhere the death
penalty.commission shallpenalty is sought, apenalty is sought, athe purpose of safepenalty is sought, a
10 U.S.C. § 906.determine to bepanel of 12panel of 12custody, ispanel of 12
proper.” § 6(G).members is requiredmembers is requiredprohibited.” members is required
(unless the(unless theProposed 10 U.S.C.(unless the
ⁱ^{ki/CRS-RL31600}If the Secretary ofconvening authorityconvening authority§ 949s.convening authority
^g/wDefense has thecertifies that 12certifies that 12certifies that 12
^s^.orauthority to conductmembers are notmembers are not A vote of two-members are not
^le^akthe final review of a“reasonably“reasonablythirds of the“reasonably
^://wikiconviction andsentence, he mayavailable” becauseof physicalavailable” becauseof physicalmembers present forthe vote is requiredavailable” becauseof physical
^h^ttpmitigate, commute,conditions orconditions orfor sentences of upconditions or
defer, or suspend,military exigencies),military exigencies),to 10 years. Longermilitary exigencies),
but not increase, thewith all memberswith all memberssentences requirewith all members
sentence. However,present for the votepresent for the votethe concurrence ofpresent for the vote
he may disapproveagreeing on theagreeing on thethree-fourths of theagreeing on the
the findings andsentence. The deathsentence. The deathmembers present. sentence. The death
return them forpenalty must bepenalty must beThe death penaltypenalty must be
further action by theexpressly authorizedexpressly authorizedmust be approvedexpressly authorized
militaryfor the offense, andfor the offense, andunanimously.for the offense, and
commission.the charges referredthe charges referredWhere the deaththe charges referred
§ 6(H).to the commissionto the commissionpenalty is sought, ato the commission

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must have expresslymust have expresslypanel of 12must have expressly
sought the penaltysought the penaltymembers is requiredsought the penalty
of death. Proposedof death.Proposed(unless theof death. Proposed

10 U.S.C. § 949n.10 U.S.C. § 949n.convening authority10 U.S.C. § 949n.

certifies that 12
members are not
“reasonably
ⁱ^{ki/CRS-RL31600}available” because
^g/wof physical
^s^.orconditions or
^le^akmilitary exigencies),
^://wikiwith all memberspresent for the vote
^h^ttpagreeing on the
sentence. The death
penalty must be
expressly authorized
for the offense, and
the charges referred
to the commission
must have expressly
sought the penalty
of death. Proposed

10 U.S.C. § 949n.

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An accused who isAn accused who isAn accused who isAn accused who is
sentenced to deathsentenced to deathsentenced to deathsentenced to death
may waive hismay waive hismay waive hismay not waive his
appeal, but may notappeal, but may notappeal, but may notright to appeal.
withdraw an appeal. withdraw an appeal. withdraw an appeal. Proposed 10 U.S.C.
Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. § 950c.
§ 950c.§ 950c.§ 950c.
ⁱ^{ki/CRS-RL31600}
^g/wThe death sentenceThe death sentenceThe death sentenceThe death sentence
^s^.ormay not be executedmay not be executedmay not be executedmay not be executed
^le^akuntil theuntil theuntil theuntil the
^://wikicommissionproceedings havecommissionproceedings havecommissionproceedings havecommissionproceedings have
^h^ttpbeen finallybeen finallybeen finallybeen finally
adjudged lawful andadjudged lawful andadjudged lawful andadjudged lawful and
the time for appealthe time for appealthe time for appealthe President
has expired; or ifhas expired; or if thehas expired; or if theapproves the
the CAAF reviewsCAAF reviews theCAAF reviews thesentence. Proposed
the sentence, thesentence, the timesentence, the time10 U.S.C. § 950i.

time for filing a writfor filing a writ hasfor filing a writ has
has expired or theexpired or the writexpired or the writ
writ has beenhas been denied;has been denied;
denied; and theand the Presidentand the President
President approvesapproves theapproves the

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the sentence. sentence. Proposedsentence. Proposed
Proposed 10 U.S.C. 10 U.S.C. § 950i.10 U.S.C. § 950i.
§ 950i.
^C^oⁿ^g^r^es^sⁱ^on^{al R}^e^s^earch^Serv^ice

ⁱ^{ki/CRS-RL31600}
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