The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice

The Military Commissions Act of 2006:
Analysis of Procedural Rules and
Comparison with Previous DOD Rules and
the Uniform Code of Military Justice
Updated September 27, 2007
Jennifer K. Elsea
Legislative Attorney
American Law Division

The Military Commissions Act of 2006:
Analysis of Procedural Rules and Comparison
with Previous DOD Rules and the Uniform Code
of Military Justice
On November 13, 2001, President Bush issued a Military Order (M.O.)
pertaining to the detention, treatment, and trial of certain non-citizens in the war
against terrorism. Military commissions pursuant to the M.O. began in November
2004 against four persons declared eligible for trial, but proceedings were suspended
after a federal district court found that one of the defendants could not be tried under
the rules established by the Department of Defense (DOD). The D.C. Circuit Court
of Appeals reversed that decision in Rumsfeld v. Hamdan, but the Supreme Court
granted review and reversed the decision of the Court of Appeals. To permit military
commissions to go forward, Congress approved the Military Commissions Act of
2006 (MCA), conferring authority to promulgate rules that depart from the strictures
of the Uniform Code of Military Justice (UCMJ) and possibly U.S. international
obligations. The Department of Defense published regulations to govern military
commissions pursuant to the MCA.
The Court of Military Commissions Review (CMCR), created by the MCA,
issued its first decision on September 24, 2007, reversing a dismissal of charges
based on lack of jurisdiction and ordering the military judge to determine whether the
accused is an “unlawful enemy combatant” subject to the military commission’s
jurisdiction. The CMCR rejected the government’s argument that the determination
by a Combatant Status Review Tribunal (CSRT) that a detainee is an “enemy
combatant” was a sufficient basis for jurisdiction, but also rejected the military
judge’s finding that the military commission was not empowered to make the
appropriate determination.
This report provides a background and analysis comparing military commissions
as envisioned under the MCA to the rules that had been established by the
Department of Defense (DOD) for military commissions and to general military
courts-martial conducted under the UCMJ. After reviewing the history of the
implementation of military commissions in the “global war on terrorism,” the report
provides an overview of the procedural safeguards provided in the MCA. The report
identifies pending legislation, including H.R. 267, H.R. 1585, H.R. 2543, H.R. 2826,
S. 1547, S. 1548, H.R. 1416, S. 1876, S. 185, S. 576, S.447, H.R. 1415 and H.R.
2710. Finally, the report provides two tables comparing the MCA with regulations
that had been issued by the Department of Defense pursuant to the President’s
Military Order with standard procedures for general courts-martial under the Manual
for Courts-Martial. The first table describes the composition and powers of the
military tribunals, as well as their jurisdiction. The second chart, which compares
procedural safeguards required by the MCA with those that had been incorporated
in the DOD regulations and the established procedures in courts-martial, follows the
same order and format used in CRS Report RL31262, Selected Procedural
Safeguards in Federal, Military, and International Courts, to facilitate comparison
with safeguards provided in federal court and international criminal tribunals.

In troduction ......................................................1
Military Commissions: General Background.........................2
Hamdan v. Rumsfeld...........................................4
The Military Commissions Act of 2006................................6
Jurisdiction ...................................................7
Personal Jurisdiction.......................................7
Subject-Matter Jurisdiction.................................10
Temporal and Spatial Jurisdiction............................13
Composition and Powers.......................................15
Procedures Accorded the Accused................................17
Open Hearing............................................18
Right to be Present........................................20
Right to Counsel.........................................20
Evidentiary Matters...........................................22
Discovery ...............................................24
Admissibility of Evidence..................................26
Coerced Statements.......................................26
Sentencing ..................................................30
Post-Trial Procedure..........................................32
Review and Appeal.......................................32
Protection against Double Jeopardy...........................35
Proposed Legislation..............................................38
List of Tables
Table 1. Comparison of Courts-Martial and Military Commission Rules.....42
Table 2. Comparison of Procedural Safeguards.........................46

The Military Commissions Act of 2006:
Analysis of Procedural Rules and
Comparison with Previous DOD Rules and
the Uniform Code of Military Justice
Rasul v. Bush, issued by the U.S. Supreme Court at the end of its 2003-2004
term, clarified that U.S. courts do have jurisdiction to hear petitions for habeas corpus
on behalf of the approximately 550 persons then detained at the U.S. Naval Station
in Guantanamo Bay, Cuba, in connection with the war against terrorism,1 establishing
a role for federal courts to play in determining the validity of the military
commissions convened pursuant to President Bush’s Military Order (M.O.) of2
November 13, 2001. After dozens of petitions for habeas corpus were filed in the
federal District Court for the District of Columbia, Congress passed the Detainee3
Treatment Act of 2005 (DTA), revoking federal court jurisdiction over habeas
claims, at least with respect to those not already pending, and creating jurisdiction in
the Court of Appeals for the District of Columbia Circuit to hear appeals of final
decisions of military commissions. The Supreme Court, in Hamdan v. Rumsfeld,4
overturned a decision by the D.C. Circuit that had upheld the military commissions,
holding instead that although Congress has authorized the use of military
commissions, such commissions must follow procedural rules as similar as possible
to courts-martial proceedings, in compliance with the Uniform Code of Military5
Justice (UCMJ). In response, Congress passed the Military Commissions Act of
2006 (MCA)6 to authorize military commissions and establish procedural rules that
are modeled after, but depart from in some significant ways, the UCMJ.

1 Rasul v. Bush, 542 U.S. 466 (2004). For a summary of Rasul and related cases, see CRS
Report RS21884, The Supreme Court and Detainees in the War on Terrorism: Summary and
Analysis of Recent Decisions, and CRS Report RS22466, Hamdan v. Rumsfeld: Military
Commissions in the “Global War on Terrorism,” both by Jennifer K. Elsea.
2 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
§1(a), 66 Fed. Reg. 57,833 (November 16, 2001) (hereinafter “M.O.”).
3 P.L. 109-148, §1005(e)(1).
4 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), rev’g 415 F.3d 33 (D.C. Cir. 2005).
5 10 U.S.C. § 801 et seq.
6 P.L. 109-366, 120 Stat. 2600, codified at chapter 47a of title 10, U.S. Code.

The Department of Defense has issued regulations for the conduct of military
commissions pursuant to the MCA.7 One detainee, David Matthew Hicks of
Australia, was convicted of material support to terrorism pursuant to a plea
agreement. Trials began for two other defendants, but were halted after the military
judges dismissed charges based on lack of jurisdiction, finding in both cases that the
defendants had not properly been found to be “unlawful enemy combatants.” The
prosecutors appealed the cases to the Court of Military Commissions Review
(CMCR), which reversed the dismissal of charges in one case and remanded it to the
military commission for a determination of whether the accused is an “unlawful
enemy combatant.”8 The CMCR decision rejected the government’s contention that
the determination by a Combatant Status Review Tribunal (CSRT) that a detainee is
an “enemy combatant” was a sufficient basis for jurisdiction, but also rejected the
military judge’s finding that the military commission was not itself empowered to
make the appropriate determination.
Military Commissions: General Background
Military commissions are courts usually set up by military commanders in the
field to try persons accused of certain offenses during war.9 Past military
commissions trying enemy belligerents for war crimes directly applied the
international law of war, without recourse to domestic criminal statutes, unless such
statutes were declaratory of international law.10 Historically, military commissions
have applied the same set of procedural rules that applied in courts-martial.11 By
statute, military tribunals may be used to try “offenders or offenses designated by
statute or the law of war.”12 Although the Supreme Court long ago stated that

7 Department of Defense, The Manual for Military Commissions, January 18, 2007,
available at [ The%20Manual%20for%20Military%

20Commi ssions.pdf].

8 United States v. Khadr, CMCR 07-001 (September 24, 2007), available online at
[ h t t p : / / w w w . d e f e n s p2007/K HADR%20Decision% 20 ( 2 4 % 2 0 S e p % 2 0 0
7)(25%20pages).pdf](last visited September 26, 2007). See infra note 46 and accompanying
9 See CRS Report RL31191, Terrorism and the Law of War: Trying Terrorists as War
Criminals before Military Commissions, by Jennifer K. Elsea (providing a general
background of U.S. history of military commissions).
10 See U.S. Army Field Manual (FM) 27-10, The Law of Land Warfare, section 505(e)
[hereinafter “FM 27-10”].
11 See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 841-42 (2d ed. 1920)(noting
that “in the absence of any statute or regulation,” the same principles and procedures
commonly govern, though possibly more “liberally construed and applied”); David Glazier,st
Note, Kangaroo Court or Competent Tribunal?: Judging the 21 Century Military
Commission, 89 VA. L. REV. 2005 (2003).
12 10 U.S.C. § 821. There are only two statutory offenses under the Uniform Code of
Military Justice (UCMJ) for which convening a military commission is explicitly
recognized: aiding the enemy and spying (in time of war). 10 U.S.C. §§ 904 and 906,
respectively. The circumstances under which civilians accused of aiding the enemy may be

charges of violations of the law of war tried before military commissions need not
be as exact as those brought before regular courts,13 it is unclear whether the current
Court would adopt that proposition or look more closely to precedent.
The President’s Military Order establishing military commissions to try
suspected terrorists was the focus of intense debate both at home and abroad. Critics
argued that the tribunals could violate any rights the accused may have under the
Constitution as well as their rights under international law, thereby undercutting the
legitimacy of any verdicts rendered by the tribunals. The Administration established
rules prescribing detailed procedural safeguards for the tribunals in Military
Commission Order No. 1 (“M.C.O. No. 1”), issued in March 2002 and amended in
2005.14 These rules were praised as a significant improvement over what might have
been permitted under the language of the M.O., but some continued to argue that the
enhancements did not go far enough and called for the checks and balances of a
separate rule-making authority and an independent appellate process.15 Critics also
noted that the rules did not address the issue of indefinite detention without charge,
as appeared to be possible under the original M.O.,16 or that the Department of

12 (...continued)
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 10, 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”).
13 In re Yamashita, 327 U.S. 1, 17 (1946) (“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
indictme nt.”).
14 Reprinted at 41 I.L.M. 725 (2002). A revision was issued August 31, 2005. The
Department of Defense (DOD) subsequently released ten “Military Commission
Instructions” (“M.C.I. No. 1-10”) to elaborate on the set of procedural rules to govern
military tribunals. The instructions set forth the elements of some crimes to be tried by
military commission, established guidelines for civilian attorneys, and provided other
administrative guidance and procedures for military commissions.
15 See Letter from Timothy H. Edgar, ACLU Legislative Counsel, Military Commission
Order No. 1, March 21, 2002 (April 16, 2002), available at [
Security/NationalSecurity.cfm?ID=10150&c=111] (last visited August 13, 2007); American
College of Trial Lawyers, Report on Military Commissions for the Trial of Terrorists,
March 2003 [hereinafter “ACTL”], available at [
?Section=All_Publications&Template=/CM/ContentDisplay.cfm&ContentFileID=63] (last
visited August 13, 2007); ACTL, Supplemental Report on Military Commissions for the
Trial of Terrorists, October 2005, online at [
?Section=Home&template=/CM/ContentDisplay.cfm&ContentID=2152] (last visited
August 13, 2007).
16 The Administration has not explicitly used this authority; instead, it characterizes the
prisoners as “enemy combatants” detained pursuant to the law of war. See, e.g., Response

Defense may continue to detain persons who have been cleared by a military
commission.17 The Pentagon has reportedly stated that its Inspector General (IG)
looked into allegations, made by military lawyers assigned as prosecutors to the
military commissions, that the proceedings are rigged to obtain convictions, but the
IG did not substantiate the charges.18
President Bush determined that twenty of the detainees at the U.S. Naval Station
in Guantánamo Bay were subject to the M.O., and 10 were subsequently charged for
trial before military commissions.19
Hamdan v. Rumsfeld
Salim Ahmed Hamdan was captured in Afghanistan and charged with
conspiracy for having allegedly worked for Osama Bin Laden.20 He challenged the21
lawfulness of the military commission under the UCMJ and claimed the right to be
treated as a prisoner of war under the Geneva Conventions.22 A ruling in his favor
at the district court was reversed by the D.C. Circuit Court of Appeals, which, while
rejecting the government’s argument that the federal courts had no jurisdiction to

16 (...continued)
of the United States to Request for Precautionary Measures - Detainees in Guantanamo Bay,
Cuba to the Inter-American Commission on Human Rights, Organization of American States
25 (2002)(“It is humanitarian law, and not human rights law, that governs the capture and
detention of enemy combatants in an armed conflict.”)
17 See Bruce Zagaris, U.S. Defense Department Issues Order on Military Commissions, 18
No. 5 INTL ENFORCEMENT L. REP 215 (2002) (citing comments by DOD chief counsel
William J. Haynes II to a New York Times reporter).
18 See Neil A. Lewis, Two Prosecutors Faulted Trials For Detainees, NY TIMES, August 1,

2005, at A1.

19 See Press Release, Department of Defense, President Determines Enemy Combatants
Subject to His Military Order (July 3, 2003), available at [
releases/2003/nr20030703-0173.html] (last visited August 13, 2007). According to the
Defense Department, that determination is effectively “a grant of [military] jurisdiction over
the person.” See John Mintz, 6 Could Be Facing Military Tribunals, WASH. POST, July 4,
2003, at A1. In 2004, nine additional detainees were determined to be eligible. See Press
Release, Department of Defense, Presidential Military Order Applied to Nine more
Combatants (July 7, 2004), available at [
nr20040707-0987.html] (last visited August 13, 2007). In November 2005, five more
detainees were charged. See Press Release, Department of Defense, Military Commission
Charges Approved (November 7, 2005), available at [

2005/nr20051107-5078.html] (last visited August 13, 2007).

20 344 F. Supp.2d 152 (D. D.C. 2004), rev’d 415 F.3d 33 (D.C. Cir. 2005), rev’d 126 S.Ct.
2749 (2006). For a more thorough discussion of the Hamdan case, see CRS Report
RS22466, Hamdan v. Rumsfeld: Military Commissions in the ‘Global War on Terrorism,’
by Jennifer K. Elsea.
21 10 U.S.C. §§ 801 et seq.
22 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

interfere in ongoing commission proceedings, agreed with the government that the
Geneva Conventions are not judicially enforceable;23 that even if they were, Hamdan
was not entitled to their protections; and that in any event, the military commission
would qualify as a “competent tribunal” for challenging the petitioner’s non-POW
status. The appellate court did not accept the government’s argument that the
President has inherent authority to create military commissions without any
authorization from Congress, but found such authority in the Authorization to Use
Military Force (AUMF),24 read together with UCMJ arts. 21 and 36.25
The Supreme Court granted review and reversed. Before reaching the merits of
the case, the Supreme Court dispensed with the government’s argument that
Congress had, by passing the Detainee Treatment Act of 2005 (DTA),26 stripped the
Court of its jurisdiction to review habeas corpus challenges by or on behalf of
Guantanamo detainees whose petitions had already been filed.27 In addition,
regardless of whether the Geneva Conventions provide rights that are enforceable in
Article III courts, the Court found that Congress, by incorporating the “law of war”
into UCMJ art. 21,28 brought the Geneva Conventions within the scope of law to be
applied by courts.29 Further, the Court found that, at the very least, Common Article

3 of the Geneva Conventions applies, even to members of al Qaeda, according to

23 Rumsfeld v. Hamdan, 415 F.3d 33, 39-40 (D.C. Cir. July 15, 2005).
24 Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).
25 Hamdan, 415 F.3d at 37.
26 P.L. 109-148, §1005(e)(1) provides that “no court … shall have jurisdiction to hear or
consider … an application for … habeas corpus filed by … an alien detained … at
Guantanamo Bay.” The provision was not yet law when the appellate court decided against
the petitioner, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d 126 S.Ct. 2749
(2006). At issue was whether this provision applies to pending cases. The Court found that
the provision does not apply to Hamdan’s petition, but did not resolve whether it affects
other cases that fall under the DTA’s provisions regarding final review of Combatant Status
Review Tribunals. Slip op. at 19, and n.14. For an overview of issues related to the
jurisdiction over habeas corpus, see CRS Report RL33180, Enemy Combatant Detainees:
Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and Kenneth Thomas.
27 Hamdan, 126 S.Ct. at 2769. 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.
28 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, at 2794.
29 The Court disagreed that the Eisentrager case requires another result, noting that the Court
there had decided the treaty question on the merits based on its interpretation of the Geneva
Convention of 1929 and that the 1949 Conventions were drafted to reject that interpretation.
Hamdan, at 2802-03.

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.”30
The Court concluded that, although Common Article 3 “obviously tolerates a
great degree of flexibility in trying individuals captured during armed conflict” and
that “its requirements are general ones, crafted to accommodate a wide variety of
legal systems,” the military commissions under M.C.O. No. 1 did not meet these
criteria. In particular, the military commissions were not “regularly constituted”
because they deviated too far, in the Court’s view, from the rules that apply to courts-
martial, without a satisfactory explanation of the need for such deviation.31 Justice
Scalia, joined by Justices Thomas and Alito, dissented, arguing that the DTA should
be interpreted to preclude the Court’s review.
The Military Commissions Act of 2006
In response to the Hamdan decision, Congress enacted the Military
Commissions Act of 2006 (“MCA”) to grant the President express authority to
convene military commissions to prosecute those fitting the definition under the
MCA of “alien unlawful enemy combatants.” The MCA eliminates the requirement
for military commissions to conform to either of the two uniformity requirements in
article 36, UCMJ. Instead, it establishes a new chapter 47A in title 10, U.S. Code
and excepts military commissions under the new chapter from the requirements in32
article 36. It provides that the UCMJ “does not, by its terms, apply to trial by
military commissions except as specifically provided in this chapter.” While
declaring that the new chapter is “based upon the procedures for trial by general
courts-martial under [the UCMJ],” it establishes that “[t]he judicial construction and
application of [the UCMJ] are not binding on military commissions established under
this chapter.”33 It expressly exempts the new military commission from UCMJ
articles 10 (speedy trial), 31 (self-incrimination warnings) and 32 (pretrial
investigations), and amends articles 21, 28, 48, 50(a), 104, and 106 of the UCMJ to

30 GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva
Conventions and applies to any “conflict not of an international character.” The majority
declined to accept the President’s interpretation of Common Article 3 as inapplicable to the
conflict with al Qaeda and interpreted the phrase “in contradistinction to a conflict between
nations,” which the Geneva Conventions designate a “conflict of international character.”
Hamdan, at 2794-96.
31 Id. at 2796-97 (plurality opinion); Id. (Kennedy, J., concurring) at 2803. 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.
32 MCA § 4 (adding to 10 U.S.C. § 836(a) the words “except as provided in chapter 47A of
this title” and to § 836(b) the words” except insofar as applicable to military commissions
established under chapter 47A of this title”).
33 10 U.S.C. § 948a (as added by the MCA).

except military commissions under the new chapter.34 Other provisions of the UCMJ
are to apply to trial by military commissions under the new chapter only to the extent
provided therein.35
The President’s M.O. was initially criticized by some as overly broad in its
assertion of jurisdiction, because it could be interpreted to cover non-citizens who
had no connection with Al Qaeda or the terrorist attacks of September 11, 2001, as
well as offenders or offenses not triable by military commission pursuant to statute
or the law of war.36 A person subject to the M.O. was amenable to detention and
possible trial by military tribunal for violations of the law of war and “other
applicable law.”37 M.C.O. No. 1 established that commissions may be convened to
try aliens designated by the President as subject to the M.O., whether captured
overseas or on U.S. territory, for violations of the law of war and “all other offenses
triable by military commissions.” The MCA largely validates the President’s
jurisdictional scheme for military commissions.
Personal Jurisdiction. While many observers agreed that the President is
authorized by statute to convene military commissions in the “Global War on
Terrorism,” some believed the President’s constitutional and statutory authority to
establish such tribunals does not extend beyond Congress’ authorization to use armed
force in response to the attacks.38 Under a literal interpretation of the M.O., however,
the President could designate as subject to the order any non-citizen he believed had
ever engaged in any activity related to international terrorism, no matter when or
where these acts took place.
The M.O. was not cited for the authority to detain; instead, the Department of
Defense asserted its authority to be grounded in the law of war, which permits
belligerents to kill or capture and detain enemy combatants. The Department of

34 MCA § 4 (amending 10 U.S.C. §§ 821(jurisdiction of general courts-martial not
exclusive), 828 (detail or employment of reporters and interpreters), 848 (power to punish
contempt), 850(a) (admissibility of records of courts of inquiry), 904(aiding the enemy), and


35 10 U.S.C. § 948b(d)(2).
36 For a discussion of criticism related to the M.O. and M.C.O. No. 1, see CRS Report
RL31600, The Department of Defense Rules for Military Commissions: Analysis of
Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of
Military Justice, by Jennifer K. Elsea; see NATIONAL INSTITUTE OF MILITARY JUSTICE,
“NIMJ ”).
37 M.O. § 1(e) (finding such tribunals necessary to protect the United States and for effective
conduct of military operations).
38 P.L. 107-40, 115 Stat. 224 (2001) (authorizing military force against those who “planned,
authorized, committed, [or] aided” the September 11 attacks or who “harbored such ...

Defense defined “enemy combatant” to mean “an individual who was part of or
supporting Taliban or al Qaeda forces, or associated forces that are engaged in
hostilities against the United States or its coalition partners,” including “any person
who has committed a belligerent act or has directly supported hostilities in aid of
enemy armed forces.”39
The MCA applies a somewhat broader definition for “unlawful enemy
combatant,” which includes
(i) a person who has engaged in hostilities or who has purposefully and
materially supported hostilities against the United States or its co-belligerents
who is not a lawful enemy combatant (including a person who is part of the
Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military
Commissions Act of 2006, has been determined to be an unlawful enemy
combatant by a Combatant Status Review Tribunal or another competent
tribunal established under the authority of the President or the Secretary of40
Thus, persons who do not directly participate in hostilities, but “purposefully
and materially” support hostilities, are subject to treatment as an “unlawful enemy
combatant” under the MCA. Citizens who fit the definition of “unlawful enemy
combatant” are not amenable to trial by military commission under the MCA, but
may be subject to detention.
The MCA does not define “hostilities” or explain what conduct amounts to
“supporting hostilities.” To the extent that the jurisdiction is interpreted to include
conduct that falls outside the accepted definition of participation in an armed conflict,
the MCA might run afoul of the courts’ historical aversion to trying civilians before41
military tribunal when other courts are available. It is unclear whether this principle
would apply to aliens captured and detained overseas, but the MCA does not appear
to exempt from military jurisdiction permanent resident aliens captured in the United
States who might otherwise meet the definition of “unlawful enemy combatant.” It
is generally accepted that aliens within the United States are entitled to the same
protections in criminal trials that apply to U.S. citizens. Therefore, to subject persons
to trial by military commission who do not meet the exception carved out by the
Supreme Court in ex parte Quirin42 for unlawful belligerents, to the extent such
persons enjoy constitutional protections, would likely raise significant constitutional

39 See Combatant Status Review Tribunal Procedure, available online at
[] (last visited
August 13, 2007).
40 10 U.S.C. § 948a(1).
41 See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Duncan v. Kahanamoku, 327 U.S.

304 (1945).

42 317 U.S. 1 (1942).

The MCA did not specifically identify who makes the determination that
defendants meet the definition of “unlawful enemy combatant.” The government
sought to establish jurisdiction based on the determinations of Combatant Status
Review Tribunals (CSRTs), set up by the Pentagon to determine the status of
detainees using procedures similar to those the Army uses to determine POW status
during traditional wars.43 The CSRTs, however, are not empowered to determine
whether the enemy combatants are unlawful or lawful, which recently led two
military commission judges to hold that CSRT determinations are inadequate to form
the basis for the jurisdiction of military commissions.44 One of the judges determined
that the military commission itself is not competent to make the determination, while
the other judge appears to have determined that the government’s allegations did not
set forth sufficient facts to conclude that the defendant, Salim Hamdan, was an
unlawful enemy combatant.45 The Court of Military Commission Review (CMCR)
reversed the dismissal in the first case.46 While it agreed that the CSRT
determinations are insufficient by themselves to establish jurisdiction, it found the
military judge erred in declaring that the status determination had to be made by a
competent tribunal other than the military commission itself.
In denying the government’s request to find that CSRT determinations are
sufficient to establish jurisdiction over the accused, the CMCR interpreted the MCA
to require more than establishing membership in Al Qaeda or the Taliban. The
CMCR found
no support for [the government’s] claim that Congress, through the M.C.A.,
created a “comprehensive system” which sought to embrace and adopt all prior
C.S.R.T. determinations that resulted in “enemy combatant” status assignments,
and summarily turn those designations into findings that persons so labeled could
also properly be considered “unlawful enemy combatants.” Similarly, we find no
support for [the government’s] position regarding the parenthetical language
contained in § 948a(1)(A)(i) of the M.C.A. — “including a person who is part
of the Taliban, al Qaeda, or associated forces.” We do not read this language as
declaring that a member of the Taliban, al Qaeda, or associated forces is per se
an “unlawful enemy combatant” for purposes of exercising criminal jurisdiction
before a military commission. We read the parenthetical comment as simply

43 See Department of Defense (DOD) Fact Sheet, “Combatant Status Review Tribunals,”
available at []. CSRT
proceedings are modeled on the procedures of Army Regulation (AR) 190-8, Enemy
Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (1997), which
establishes administrative procedures to determine the status of detainees under the Geneva
Conventions and prescribes their treatment in accordance with international law. It does not
include a category for “unlawful” or “enemy” combatants, who would presumably be
covered by the other categories.
44 See Josh White and Shailagh Murray, Guantanamo Ruling Renews The Debate Over
Detainees, WASH. POST, June 6, 2007, at A3.
45 The orders are available on the DOD website at [
courtofmilitarycommissionreview.html] (last visited September 14, 2007).
46 United States v. Khadr, CMCR 07-001 (September 24, 2007), available online at
[ HADR%20Decision%20(24%20Sep%200


elaborating upon the sentence immediately preceding it. That is, that a member
of the Taliban, al Qaeda, or associated forces who has engaged in hostilities or
who has purposefully and materially supported hostilities against the United
States or its co-belligerents will also qualify as an “unlawful enemy combatant”47
under the M.C.A. (emphasis added [by the court]).
The CMCR further explained that executive branch memoranda defining “enemy
combatant” status were implemented solely for purposes of continued detention of
personnel captured during hostilities and applicability of the Geneva Conventions.
By contrast,
Congress in the M.C.A. was carefully and deliberately defining status for the
express purpose of specifying the in personam criminal jurisdiction of military
commission trials. In defining what was clearly intended to be limited
jurisdiction, Congress also prescribed serious criminal sanctions for those
members of this select group who were ultimately convicted by military48
Further, because detainees could not have known when their CSRT reviews
were taking place that the determination could subject them to the jurisdiction of a
military commission, the CMCR suggested that the use of CSRT determinations to
establish jurisdiction would undermine Congress’s intent that military commissions
operate as “regularly constituted court[s], affording all the necessary ‘judicial
guarantees which are recognized as indispensable by civilized peoples’ for purposes
of Common Article 3 of the Geneva Conventions.”49
As a consequence of the decision, the Department of Defense will not have to
institute new status tribunals, but the prosecution has the burden of proving
jurisdiction over each person charged for trial by a military commission.
Subject-Matter Jurisdiction. The MCA provides jurisdiction to military
commissions over “any offense made punishable by this chapter or the law of war
when committed by an alien unlawful enemy combatant....”50 Crimes to be triable
by military commission are defined in subchapter VII (10 U.S.C. §§ 950p - 950w).
Offenses include the following: murder of protected persons; attacking civilians,
civilian objects, or protected property; pillaging; denying quarter; taking hostages;
employing poison or similar weapons; using protected persons or property as shields;
torture, cruel or inhuman treatment; intentionally causing serious bodily injury;
mutilating or maiming; murder in violation of the law of war; destruction of property
in violation of the law of war; using treachery or perfidy; improperly using a flag of
truce or distinctive emblem; intentionally mistreating a dead body; rape; sexual
assault or abuse; hijacking or hazarding a vessel or aircraft; terrorism; providing
material support for terrorism; wrongfully aiding the enemy; spying; contempt;
perjury and obstruction of justice. 10 U.S.C. § 950v. Conspiracy (§ 950v(b)(28)),

47 Id. at 13.
48 Id.
49 Id. at 15 (citing 10 U.S.C. § 948b(f)).
50 10 U.S.C. § 948d.

attempts (§ 950t), and solicitation (§ 950u) to commit the defined acts are also
Military commissions under M.C.O. No. 1 were to have jurisdiction over crimes
listed in M.C.I. No. 2, Crimes and Elements for Trials by Military Commission,51
which appears to have served as a basis for the MCA list. The list of crimes in
M.C.I. No. 2 was not meant to be exhaustive. Rather, it was intended as an
illustration of acts punishable under the law of war52 or triable by military
commissions,53 but did not permit trial for ex post facto crimes.54
Although many of the crimes defined in the MCA seem to be well-established
offenses against the law of war, at least in the context of an international armed
conflict,55 a court might conclude that some of the listed crimes are new. For

51 M.C.I. No. 2 was published in draft form by DOD for outside comment. The final version
appears to have incorporated some of the revisions, though not all, suggested by those who
52 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.
53 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.
54 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.”).
55 For example, Article 3 of the Statute governing the International Criminal Tribunal for the
former Yugoslavia (ICTY) includes the following as violations of the laws or customs of
war in non-international armed conflict.
Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause
unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by
military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages,
dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to
religion, charity and education, the arts and sciences, historic monuments and
works of art and science;
(e) plunder of public or private property.

example, a plurality of the Supreme Court in Hamdan agreed that conspiracy is not
a war crime under the traditional law of war.56 The crime of “murder in violation of
the law of war,” which punishes persons who, as unprivileged belligerents, commit
hostile acts that result in the death of any persons, including lawful combatants, may
also be new. While it appears to be well-established that a civilian who kills a lawful
combatant is triable for murder and cannot invoke the defense of combatant
immunity, it is not clear that the same principle applies in armed conflicts of a non-
international nature, where combatant immunity does not apply. The International
Criminal Tribunal for the former Yugoslavia (ICTY) has found that war crimes in the
context of non-international armed conflict include murder of civilians, but have
implied that the killing of a combatant is not a war crime.57 Similarly, defining as a
war crime the “material support for terrorism”58 does not appear to be supported by
historical precedent.

55 (...continued)
UN Doc. S/Res/827 (1993), art. 3. The ICTY Statute and procedural rules are available at
[]. 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.
56 Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2785 (2006).
57 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.”).
58 10 U.S.C. § 950v(b)(25)(incorporating the definition found in 18 U.S.C. § 2339(A)).

Part IV of the Manual for Military Commissions (M.M.C.) sets forth the
elements of crimes defined by the MCA. There are few substantive differences
between the M.M.C. definitions and those previously set forth in M.C.I. No. 2. The
M.M.C. definition of “Aiding the Enemy” incorporates the element of wrongfulness
added by 10 U.S.C. § 950v(26), necessitating a new finding that the accused owed
some form of allegiance to the United States at the time the conduct took place. Two
crimes, “mutilation or maiming” and “causing serious injury,”59 were altered to
remove the element that required that the victim was in the custody or control of the
accused. The new definitions appear to clarify that combat activities, including
attacks against combatants, are covered when the accused lacks combatant immunity.
The crime “murder by an unprivileged belligerent” was broadened in the definition
of “murder in violation of the law of war” to include not just killing, but also deaths
resulting from an act or omission of the accused, where the accused intended to kill
the victim or victims.
Temporal and Spatial Jurisdiction. The law of war has traditionally
applied within the territorial and temporal boundaries of an armed conflict between
at least two belligerents.60 It traditionally has not been applied to conduct occurring
on the territory of neutral states or on territory not under the control of a belligerent,
to conduct that preceded the outbreak of hostilities, or to conduct during hostilities
that do not amount to an armed conflict. Unlike the conflict in Afghanistan, the
“Global War on Terrorism” does not have clear boundaries in time or space,61 nor is
it entirely clear who the belligerents are.
The broad reach of the M.O. to encompass conduct and persons customarily
subject to ordinary criminal law evoked criticism that the claimed jurisdiction of the
military commissions exceeded the customary law of armed conflict, which M.C.I.
No. 2 purported to restate.62 The MCA provides jurisdiction to military commissions

59 10 U.S.C. § 950v(b)(13-14). For “serious bodily injury,” the MCA specifically includes
“lawful combatants” as possible victims.
60 See WINTHROP, supra note 11, 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).
61 Some may argue that no war has a specific deadline and that all conflicts are in a sense
indefinite. In traditional armed conflicts, however, it has been relatively easy to identify
when hostilities have ended; for example, upon the surrender or annihilation of one party,
an annexation of territory under dispute, an armistice or peace treaty, or when one party to
the conflict unilaterally withdraws its forces. See GERHARD VON GLAHN, LAW AMONGth
NATIONS 722-730 (6 ed. 1992).
62 See Human Rights First, Trial Under Military Order, A Guide to the Final Rules for
Military Commissions (revised May 2006)[hereinafter “HRF”], available at
[]] (last
visited August 13, 2007); See Leila Nadya Sadat, Terrorism and the Rule of Law, 3 WASH.
U. GLOBAL STUD. L. REV. 135, 146 (2004) (noting possibly advantageous domestic aspects

over covered offenses “when committed by an alien unlawful enemy combatant
before, on, or after September 11, 2001.”63 However, certain definitions used in
describing the offenses triable by military commissions would seem to limit many of
them to conduct occurring in an armed conflict.
A common element among the crimes enumerated in M.C.I. No.2 was that the
conduct “took place in the context of and was associated with armed conflict.” The
instruction explained that the phrase required a “nexus between the conduct and
armed hostilities,”64 which has traditionally been a necessary element of any war
crime. However, the definition of “armed hostilities” was broader than the
customary definition of war or “armed conflict.” According to the M.C.I., “armed
hostilities” need not be a declared war or “ongoing mutual hostilities.”65 Instead, any
hostile act or attempted hostile act might have had sufficient nexus if its severity rose
to the level of an “armed attack,” or if it were intended to contribute to such acts.
Some commentators have argued that the expansion of “armed conflict” beyond its
customary bounds improperly expanded the jurisdiction of military commissions
beyond those that by statute or under the law of war are triable by military
commissions.66 The elements of crimes set forth in the M.M.C. also include a nexus
to an armed conflict, but neither the manual nor the MCA contains a definition. The
Supreme Court has not clarified the scope of the “Global War on Terrorism,” but has
not simply deferred to the President’s interpretation.
In enacting the MCA, Congress seems to have provided the necessary statutory
definitions of criminal offenses to overcome previous objections with respect to
subject matter jurisdiction of military commissions. However, questions may still
arise with respect to the necessity for conduct to occur in the context of an armed
conflict in order to be triable by military commission. There is no express
requirement to that effect in the MCA. The overall purpose of the statute together
with the elements of some of the crimes arguably may be read to require a nexus.
The definition for “Enemy” provided in M.C.I. No. 2 raised similar issues.
According to § 5(B), “Enemy” includes
any entity with which the United States or allied forces may be engaged in armed
conflicts or which is preparing to attack the United States. It is not limited to

62 (...continued)
of treating terrorist attacks as war crimes, but identifying possible pitfalls of creating a new
international legal regime).
63 10 U.S.C. § 948d.
64 M.C.I. No. 2 § 5(C).
65 Id.
66 See SOURCEBOOK, supra note 51, 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).

foreign nations, or foreign military organizations or members thereof. “Enemy”
specifically includes any organization of terrorists with international reach.
Some observers argued that this impermissibly subjected suspected international
criminals to the jurisdiction of military commissions in circumstances in which the67
law of armed conflict has not traditionally applied. 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.68 The MCA does not
define “enemy.” Military commissions trying persons accused of spying or aiding
the enemy, for example, face the challenge of determining whether the conduct
assisted an “enemy of the United States” as required under the MCA.
Composition and Powers
M.C.O. No. 1 provided for military commissions to consist of panels of three
to seven military officers as well as one or more alternate members who had been
“determined to be competent to perform the duties involved” by the Secretary of
Defense or his designee,69 and could include reserve personnel on active duty,
National Guard personnel in active federal service, and retired personnel recalled to
active duty. The rules also permitted the appointment of persons temporarily
commissioned by the President to serve as officers in the armed services during a
national emergency.70 The presiding officer was required to be a judge advocate in
any of the U.S. armed forces, but not necessarily a military judge.71
The MCA provides for a qualified military judge to preside over panels of at
least five military officers, except in the cases in which the death penalty is sought,
in which case the minimum number of panel members is twelve.72 Procedures for
assigning military judges as well as the particulars regarding the duties they are to
perform are left to the Secretary of Defense to prescribe, except that the military
judge may not be permitted to consult with members of the panel outside of the
presence of the accused and counsel except as prescribed in 10 U.S.C. § 949d. The
military judge has the authority to decide matters related to the admissibility of
evidence, including the treatment of classified information, but has no authority to
compel the government to produce classified information.

67 See SOURCEBOOK, supra note 51, at 38 (NACDL comments).
68 See id. at 98 (commentary of Eugene R. Fidell and Michael F. Noone).
69 M.C.O. No. 1 § 4(A)(3).
70 See 10 U.S.C. § 603, listed as reference (e) of M.C.O. No. 1.
71 M.C.O. No. 1 § 4(A)(4). See NIMJ, supra note 36, 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.
72 10 U.S.C. §§ 948m and 949m.

Like the previous DOD rules, the MCA empowers military commissions to
maintain decorum during proceedings. M.C.O. No. 1 authorized the presiding officer
“to act upon any contempt or breach of Commission rules and procedures,” including
disciplining any individual who violates any “laws, rules, regulations, or other
orders” applicable to the commission, as the presiding officer saw fit. Presumably
this power was to include not only military and civilian attorneys but also any
witnesses who had been summoned under order of the Secretary of Defense pursuant
to M.C.O. No. 1 § 5(A)(5).73 The MCA, 10 U.S.C. § 950w authorizes the military
commissions to “punish for contempt any person who uses any menacing word, sign,
or gesture in its presence, or who disturbs its proceedings by any riot or disorder.”
It is unclear whether this section is meant to expand the jurisdiction of military
commissions to cover non-enemy combatant witnesses or civilian observers, but the
M.M.C. provides for jurisdiction over all persons, including civilians, and permits
military judges to sentence those convicted with both fines and terms of
confinement.74 The UCMJ authorizes other military commissions to punish contempt
with a fine of $100, confinement for up to 30 days, or both.75 The M.M.C. does not
set a limit on punishment for contempt.
The MCA provides that military commissions have the same power as a general
court-martial to compel witnesses to appear in a manner “similar to that which courts
of the United States having criminal jurisdiction may lawfully issue.”76 However,
rather than providing that the trial counsel and the defense are to have equal
opportunity to compel witnesses and obtain evidence, the MCA provides the defense
a “reasonable opportunity” to obtain witnesses and evidence. The M.M.C. provides
the trial counsel with responsibility for producing witnesses requested by the defense,
unless trial counsel determines the witness’s testimony is not required, but the
defense counsel may appeal the determination to the convening authority or, after
referral, the military judge.77
Under article 47 of the UCMJ, a duly subpoenaed witness who is not subject to
the UCMJ and who refuses to appear before a military commission may be
prosecuted in federal court.78 This article is not expressly made inapplicable to the
military commissions established under the MCA. The M.M.C. provides the military
judge or any person designated to take evidence authority to issue a subpoena to
compel the presence of a witness or the production of documents. As is the case with

73 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”).
74 Rule for Military Commissions (R.M.C.) 809.
75 See 10 U.S.C. § 848. This section is made inapplicable to military commissions in
chapter 47a by MCA § 4.
76 10 U.S.C. § 950j.
77 R.M.C. 703.
78 See 10 U.S.C. § 847. It is unclear how witnesses are “duly subpoenaed;” 10 U.S.C. § 846
empowers the president of the court-martial to compel witnesses to appear and testify and
to compel production of evidence, but this statutory authority does not explicitly apply to
military commissions. The subpoena power extends to “any part of the United States, or the
Territories, Commonwealth and possessions.”

general courts-martial, the military judge may issue a warrant of attachment to
compel the presence of a witness who refuses to comply with a subpoena.79
One of the perceived shortcomings of the M.O. had to do with the problem of
command influence over commission personnel. M.C.O. No. 1 provided for a “full
and fair trial,” but contained few specific safeguards to address the issue of
impartiality. The President or his designee were empowered to decide which charges
to press; to select the members of the panel, the prosecution and the defense counsel,
and the members of the review panel; and to approve and implement the final
outcome. The President or his designees had the authority to write procedural rules,
interpret them, enforce them, and amend them. Justice Kennedy remarked in his
concurring opinion that the concentration of authority in the Appointing Authority
was a significant departure from the structural safeguards Congress has built into the
military justice system.80
The MCA, by providing requirements for the procedural rules to guard against
command influence, may alleviate these concerns. In particular, the MCA prohibits
the unlawful influence of military commissions and provides that neither the military
commission members nor military counsel may have adverse actions taken against
them in performance reviews. Many of the procedural rules are left to the discretion
of the Secretary of Defense or his designee, more so than is the case under the UCMJ.
Rule 104 of the Rules for Military Commissions (R.M.C.) prohibits command
influence in terms similar to those in the Manual for Courts-Martial, except that they
apply more broadly to “all persons” rather than only to “all persons subject to the
Procedures Accorded the Accused
M.C.O. No. 1 contained procedural safeguards similar to many of those that
apply in general courts-martial, but did not specifically adopt any procedures from
the UCMJ, even those that explicitly apply to military commissions.81 The M.C.O.
made clear that its rules alone and no others were to govern the trials,82 perhaps
precluding commissions from looking to the UCMJ or other law to fill in any gaps.

79 R.M.C. 703; R.C.M. 703.
80 Hamdan, slip op. at 11-16 (Kennedy, J. concurring).
81 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
War, the precursor to UCMJ Art. 36, to mean military commissions trying enemy
combatants). President Bush explicitly invoked UCMJ art. 36 as statutory authority for the
M.O., and included a finding, “consistent with section 836 of title 10, United States Code,
that it is not practicable to apply in military commissions under this order the principles of
law and the rules of evidence generally recognized in the trial of criminal cases in the United
States district courts.” M.O. § 1(g). The Supreme Court, however, rejected that finding as
unsupported by the record and read the “uniformity” clause of UCMJ art. 36 as requiring
that military commissions must follow rules as close as possible to those that apply in
82 M.C.O. No. 1 § 1.

Without explicitly recognizing that accused persons had rights under the law, the
M.C.O. listed procedures to be accorded to the accused, but specified that these were
not to be interpreted to give rise to any enforceable right, benefit or privilege, and
were not to be construed as requirements of the U.S. Constitution.83 Prior to the
DTA, the accused had no established opportunity to challenge the interpretation of
the rules or seek redress in case of a breach.84
The MCA lists a minimum set of rights to be afforded the accused in any trial,
and provides the accused an opportunity to appeal adverse verdicts based on
“whether the final decision was consistent with the standards and procedures
specified” in the MCA, and “to the extent applicable, the Constitution and the laws
of the United States.” The Department of Defense rules provided the accused was to
be informed of the charges sufficiently in advance of trial to prepare a defense;85 the
MCA provides that the accused is to be informed of the charges as soon as
practicable after the charges and specifications are referred for trial.86 The accused
continues under the MCA to be presumed innocent until determined to be guilty. As
was the case with the previous DOD rules, the presumption of innocence and the
right against self-incrimination are to result in an entered plea of “Not Guilty” if the
accused refuses to enter a plea or enters a “Guilty” plea that is determined to be
involuntary or ill informed.87 The accused has the right not to testify at trial and to
have the opportunity to present evidence and cross-examine witnesses for the
prosecution,88 as was the case under the previous DOD rules.89
Open Hearing. The M.C.O. rules provided that the trials themselves were to
be conducted openly except to the extent the Appointing Authority or presiding
officer closed proceedings to protect classified or classifiable information or
information protected by law from unauthorized disclosure, the physical safety of
participants, intelligence or law enforcement sources and methods, other national
security interests, or “for any other reason necessary for the conduct of a full and fair
trial.”90 However, at the discretion of the Appointing Authority, “open proceedings”91

did not necessarily have to be open to the public and the press.
83 Id. § 10.
84 Id.; M.C.I. No. 1 § 6 (Non-Creation of Right).
85 M.C.O. No. 1 § 5(A).
86 10 U.S.C. § 948q.
87 M.C.O. No. 1 §§ 5(B) and 6(B); 10 U.S.C. § 949i.
88 10 U.S.C. § 949a(b).
89 Id. §§ 4(A)(5)(a); 5(K); 6B(3).
90 M.C.O. No. 1 § 6(D)(5).
91 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.

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.92 The
First Amendment right of public access extends to trials by court-martial,93 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. 94
The MCA provides that the military judge may close portions of a trial only to
protect information from disclosure where such disclosure could reasonably be
expected to cause damage to the national security, such as information about
intelligence or law enforcement sources, methods, or activities; or to ensure the
physical safety of individuals.95 The information to be protected from disclosure
does not necessarily have to be classified. To the extent that the exclusion of the
press and public is based on the discretion of the military judge without consideration
of the constitutional requirements relative to the specific exigencies of the case at
trial, the procedures may implicate the First Amendment rights of the press and
public. The M.M.C. provides, in Rule 806, that the military judge may close
proceedings only to protect information designated for such protection by a
government agency or to secure the physical safety of individuals. However, the rule
also provides that “in order to maintain the dignity and decorum of the proceedings
or for other good cause, the military judge may reasonably limit the number of
spectators in, and the means of access to, the courtroom, and exclude specific persons
from the courtroom.” Such limitations must be supported by written findings.
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.”96 The reporters’ right
to gather information does not include an absolute right to gain access to areas not
open to the public.97 Access of the press to the proceedings of military commissions
may be an issue for the courts ultimately to decide, even if those tried by military

92 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).
93 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).
94 See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984).
95 10 U.S.C. § 949d(d).
96 Pell v. Procunier, 417 U.S. 817, 822-24 (1974).
97 See Juan R. Torruella, On the Slippery Slopes of Afghanistan: Military Commissions and
the Exercise of Presidential Power, 4 U. PA. J. CONST. L. 648, 718 (2002) (noting that
proceedings held at the Guantánamo Bay Naval Station may be de facto closed due to the
physical isolation of the facility).

commission are determined to lack the protection of the Sixth Amendment right to
an open trial or means to challenge the trial.98
Right to be Present. Under UCMJ art. 39,99 the accused at a court-martial
has the right to be present at all proceedings other than the deliberation of the
members. Under the DOD rules for military commissions under M.C.O. No. 1, the
accused or the accused’s civilian attorney could be precluded from attending portions
of the trial for security reasons, but a detailed defense counsel was to be present for
all hearings. The MCA does not provide for the exclusion of the accused from
portions of his trial, and does not allow classified information to be presented to
panel members that is not disclosed to the accused. The accused may be excluded
from trial proceedings (other than panel deliberations) by the military judge only100
upon a determination that the accused persists in disruptive or dangerous conduct.
Right to Counsel. As is the case in military courts-martial, an accused before
a military commission under both M.C.O. No. 1 and the MCA has the right to have
military counsel assigned free of charge. The right to counsel attaches much earlier
in the military justice system, where the accused has a right to request an attorney
prior to being interrogated about conduct relating to the charges contemplated.
Under the MCA, at least one qualifying military defense counsel is to be detailed “as
soon as practicable after the swearing of charges….”101 The accused may also hire
a civilian attorney who is a U.S. citizen, is admitted to the bar in any state, district,
or possession, has never been disciplined, has a SECRET clearance (or higher, if
necessary for a particular case), and agrees to comply with all applicable rules. If
civilian counsel is hired, the detailed military counsel serves as associate counsel.102
Unlike the DOD rules, the MCA provides that the accused has the right to self-
Previous DOD rules provided that defense counsel was to be assigned free of
cost once charges were referred, but permitted the accused to request another JAG
officer to be assigned as a replacement if available in accordance with any applicable
instructions or supplementary regulations that might later be issued.104 The MCA

98 Cf. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) (finding closure of
immigration hearings based on relation to events of September 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).
99 10 U.S.C. § 839.
100 10 U.S.C. § 949d(e).
101 10 U.S.C. § 948k.
102 10 U.S.C. § 949c(b); R.M.C. 804.
103 10 U.S.C. § 949a(b)(2)(D). M.C.I. No. 4 required detailed defense counsel to “defend
the accused zealously within the bounds of the law ... notwithstanding any intention
expressed by the accused to represent himself.” M.C.I. No. 4 § 3(C).
104 M.C.O. No. 1 § 4(C). M.C.I. No. 4 § 3(D) listed criteria for the “availability” of selected

does not provide the accused an opportunity to request a specific JAG officer to act
as counsel. However, the accused may request a replacement counsel from the Chief
Defense Counsel if he believes his detailed counsel has been ineffective or if he is
otherwise materially dissatisfied with said counsel.105 If the accused retains the
services of a civilian attorney, the MCA provides that military defense counsel is to
act as associate counsel.106 The M.M.C. provides that, in the event the accused elects
to represent himself, the detailed counsel shall serve as “standby counsel,”107 and the
military judge may require that such defense counsel remain present during
proceedi n gs . 108
The MCA requires civilian attorneys defending an accused before military
commission to meet the same strict qualifications that applied under DOD rules.109
Under M.C.O. No. 1, a civilian attorney had to be a U.S. citizen with at least a
SECRET clearance,110 with membership in any state or territorial bar and no
disciplinary record, and was required to agree in writing to comply with all rules of
court.111 The MCA provides similar requirements,112 but does not set forth in any
detail what rules might be established to govern the conduct of civilian counsel.
Under the previous rules, the Appointing Authority and DOD General Counsel were
empowered to revoke any attorney’s eligibility to appear before any commission.113
Under the present regulation, the Chief Defense Counsel has the responsibility of
determining the eligibility of civilian defense counsel, and may reconsider the
determination based on subsequently discovered information indicating material
nondisclosure or misrepresentation in the application, or material violation of
obligations of the civilian defense counsel, or other good cause.”114 Alternatively, the
Chief Defense Counsel may refer the matter to either the convening authority or the

104 (...continued)
detailed counsel.
105 Regulation for Trial by Military Commissions, Para. 9-2. The accused may request a
specific JAG officer from the cadre of officers assigned to the Defense Counsel’s Office,
but does not have a right to choose.
106 10 U.S.C. § 949c(b)(5).
107 R.M.C. 501.
108 R.M.C. 506(c).
109 10 U.S.C. § 949c(b).
110 Originally, civilian attorneys were required to pay the costs associated with obtaining a
clearance. M.C.I. No. 5 §3(A)(2)(d)(ii). DOD later waived the administrative costs for
processing applications for TOP SECRET clearances in cases that would require the higher
level of security clearance. See DOD Press Release No. 084-04 , New Military Commission
Orders, Annex Issued (February 6, 2004), available at [

2004/nr20040206-0331.html] (Last visited August 15, 2007).

111 M.C.O. No. 1 § 4(C)(3)(b).
112 10 U.S.C. §949c, R.M.C. 502(d)(3).
113 M.C.I. No. 5 § 3(e)(B)(6).
114 Regulation for Trial by Military Commissions, Para. 9-5(c).

DOD Deputy General Counsel (Personnel and Health Policy), who may revoke or
suspend the qualification of any member of the civilian defense counsel pool.
The MCA does not address the monitoring of communications between the
accused and his attorney, and does not provide for an attorney-client privilege. Rule
502 of the Military Commission Rules of Evidence (Mil. Comm. R. Evid.) provides
for substantially the same lawyer-client privilege that applies in courts-martial.115
With respect to the monitoring of attorney-client communications, the previous DOD
rules for military commissions initially provided that civilian counsel were required
to agree that communications with the client were subject to monitoring. That
requirement was later modified to require prior notification and to permit the attorney
to notify the client when monitoring is to occur.116 Although the government was not
permitted to use information against the accused at trial, some argued that the
absence of the normal attorney-client privilege could impede communications
between them, possibly decreasing the effectiveness of counsel. Civilian attorneys
were bound to inform the military counsel upon learning of information about a
pending crime that could lead to “death, substantial bodily harm, or a significant
impairment of national security.”117 The required agreement under the present
regulations imposes a similar duty to inform, but does not mention monitoring of
communications. 118
Evidentiary Matters
The Sixth Amendment to the U.S. Constitution guarantees that those accused
in criminal prosecutions have the right to be “confronted with the witnesses against
[them]” and to have “compulsory process for obtaining witnesses in [their] favor.”119
The Supreme Court has held that “[t]he central concern of the Confrontation Clause
is to ensure the reliability of the evidence against a criminal defendant by subjecting
it to rigorous testing in the context of an adversary proceeding before the trier of

115 Mil. R. Evid. 502.
116 See M.C.O. No. 3, “Special Administrative Measures for Certain Communications
Subject to Monitoring.” The required affidavit and agreement annexed to M.C.I. No. 3 was
modified to eliminate the following language:
I understand that my communications with my client, even if traditionally covered by the
attorney-client privilege, may be subject to monitoring or review by government officials,
using any available means, for security and intelligence purposes. I understand that any
such monitoring will only take place in limited circumstances when approved by proper
authority, and that any evidence or information derived from such communications will
not be used in proceedings against the Accused who made or received the relevant
c o mmuni c a t i o n.
117 M.C.I. No. 5, Annex B § II(J).
118 Regulation for Trial by Military Commissions, Figure 9.2. Affidavit and Agreement by
Civilian Defense Counsel, II(J).
119 U.S. CONST. Amdt. VI applies in courts-martial. E.g. United States v. Scheffer, 523 U.S.

303 (1998).

fact.”120 The Military Rules of Evidence (Mil. R. Evid.)121 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].”122 Relevant
evidence is excluded if its probative value is outweighed by other factors.123 At
court-martial, the accused has the right to view any documents in the possession of
the prosecution related to the charges, and evidence that reasonably tends to negate
the guilt of the accused, reduce the degree of guilt or reduce the punishment,124 with
some allowance for protecting non-relevant classified information.125
Supporters of the use of military commissions to try suspected terrorists have
viewed the possibility of employing evidentiary standards that vary from those used
in federal courts or in military courts-martial as a significant advantage over those
courts. The Supreme Court seemed to indicate that the previous DOD rules were
inadequate under international law, remarking that “various provisions of
Commission Order No. 1 dispense with the principles, articulated in Article 75 [of
Protocol I to the Geneva Conventions] and indisputably part of the customary
international law, that an accused must, absent disruptive conduct or consent, be
present for his trial and must be privy to the evidence against him.”126
The MCA provides that the “accused shall be permitted to present evidence in
his defense, to cross-examine the witnesses who testify against him, and to examine
and respond to evidence admitted against him on the issue of guilt or innocence and
for sentencing.”127 It is not clear what evidence might be excluded from this
requirement as irrelevant to the issues of guilt, innocence, or appropriate punishment.
A likely issue will be whether evidence relevant to the credibility of a witness or the
authenticity of a document is permitted to be excluded from the accused’s right to
examine and respond to evidence, unless expressly provided elsewhere in the MCA.

120 Maryland v. Craig, 497 U.S. 836, 845 (1990).
121 The Military Rules of Evidence (Mil. R. Evid.) are contained in the Manual for Courts-
Martial (M.C.M.), established as Exec. Order No. 12473, Manual for Courts-Martial, United
States, 49 Fed. Reg 17,152, (April 23, 1984), as amended. The M.C.M. also contains the
procedural rules for courts-martial, known as the Rules For Courts-Martial (R.C.M.).
122 Mil. R. Evid. 402.
123 Mil. R. Evid. 403 (relevant evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the members, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence”).
124 See R.C.M. 701(a)(6); NIMJ, supra note 36, at 31-32.
125 Mil. R. Evid. 505 provides procedures similar to the Classified Information Protection
Act (CIPA) that applies in civilian court.
126 Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2798 (2006)(while accepting that the government
“has a compelling interest in denying [the accused] access to certain sensitive information,”
stating that “at least absent express statutory provision to the contrary, information used to
convict a person of a crime must be disclosed to him”).
127 10 U.S.C. § 949a.

Discovery. The MCA provides that defense counsel is to be afforded a
reasonable opportunity to obtain witnesses and other evidence, including evidence
in the possession of the United States, as specified in regulations prescribed by the
Secretary of Defense.128 Unlike M.C.O. No. 1, the MCA does not expressly direct
the prosecution to provide to the accused all of the evidence trial counsel intends to
present.129 However, as noted above, the accused is entitled to examine and respond
to evidence relevant to establishing culpability. Both M.C.O. No. 1 and the MCA
provide that the accused is entitled to exculpatory information known to the
prosecution, with procedures permitting some variance for security concerns.
Like M.C.O. No. 1, the MCA provides for the protection of national security
information during the discovery phase of a trial. The military judge must authorize
discovery in accordance with rules prescribed by the Secretary of Defense to redact
classified information or to provide an unclassified summary or statement describing130
the evidence. However, where M.C.O. No. 1 permitted the withholding of any
“Protected Information,”131 the MCA permits the government to withhold only
properly classified information that has been determined by the head of a government
agency or department to require protection because its disclosure could result in harm
to the national security.
Under M.C.O. No. 1, the presiding officer had the authority to permit the
deletion of specific items from any information to be made available to the accused
or defense counsel, or to direct that unclassified summaries of protected information
be prepared.132 The accused was to have access to protected information to be used
by the prosecution and exculpatory protected information “to the extent consistent
with national security, law enforcement interests, and applicable law.”133 Defense
counsel was permitted to view the classified version only if the evidence was to be
admitted at trial. The MCA does not provide defense counsel with access to the
classified information that serves as the basis for substitute or redacted proffers.
The MCA provides for the mandatory production of exculpatory information
known to trial counsel (defined as exculpatory evidence that the prosecution would

128 10 U.S.C. § 949j.
129 M.C.O. No. 1, § 5(E) (requiring such information, as well as any exculpatory evidence
known by the prosecution, to be provided to the accused as long as such information was
not deemed to be protected under Sec. 6(D)(5)).
130 10 U.S.C. § 949j.
131 M.C.O. No. 1, § 6 (defining “Protected Information” to include classified or classifiable
information, information protected “by law or rule from unauthorized disclosure,”
information that could endanger trial participants, intelligence and law enforcement sources,
methods or activities, or “information concerning other national security interests”).
132 M.C.O. No. 1, § 6(D)(5)(b). Some observers noted that protected information could
include exculpatory evidence as well as incriminating evidence, which could implicate 6th
Amendment rights and rights under the Geneva Convention, if applicable. See HRF, supra
note 62, at 3.
133 M.C.O. No. 1 § 6(D)(5)(b).

be required to disclose in a general court-martial134), but does not permit defense
counsel or the accused to view classified information. The military judge is
authorized to permit substitute information, in particular when trial counsel moves
to withhold information pertaining to the sources, methods, or activities by which the
information was acquired. If the military judge finds that evidence is classified, he
or she must authorize the trial counsel to protect the sources and methods by which
such evidence was acquired.135 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.136
R.M.C. 701(e) provides that trial counsel must provide exculpatory evidence
that he would be required to produce in general courts-martial, subject to exceptions
where the government asserts a national security privilege. In such a case, the
military judge may issue a protective order, but the defense is entitled to an adequate
substitute for the information.137 Such a substitute may involve, to the extent
practicable, the deletion of specified items of classified information from documents
made available to the defense; the substitution of a portion or summary of the
information for such classified documents; or the substitution of a statement
admitting relevant facts that the classified information would tend to prove.138
In the event the military judge determines that the government’s proposed
substitute would be inadequate or impracticable for use in lieu of evidence that the
government seeks to introduce at trial, evidence that is exculpatory, or evidence that
is necessary to enable the defense to prepare for trial, and the government objects to
methods the judge deems appropriate, the judge is required to “issue any order that
the interests of justice require.”139 Such an order must give the government an
opportunity to comply to avoid a sanction, and may include striking or precluding all
or part of a witness’s testimony, declaring a mistrial, ruling against the government
on any issue as to which the evidence is probative and material to the defense, or

134 It is not clear what information would be required to be provided under this subsection.
Discovery at court-martial is controlled by R.C.M. 701, which requires trial counsel to
provide to the defense any papers accompanying the charges, sworn statements in the
possession of trial counsel that relate to the charges, and all documents and tangible objects
within the possession or control of military authorities that are material to the preparation
of the defense or that are intended for use in the prosecution’s case-in-chief at trial.
Exculpatory evidence is not defined, but it appears to be encompassed under “evidence
favorable to the defense,” which includes evidence that tends to negate the guilt of the
accused of an offense charged, reduce the degree of guilt, or reduce the applicable
punishment. The M.M.C. defines “exculpatory evidence” in those same terms. R.M.C.


135 R.M.C. 701(f)(3).
136 10 U.S.C. § 949j.
137 R.M.C. 701(f)(5). Protective orders are covered under Mil. Comm. R. Evid. 505, and
include orders that limit the scope of direct examination and cross examination of witnesses.
138 R.M.C. 701(f)(2).
139 Mil. Comm. R. Evid. 505(e)(4).

dismiss charges, or at least those charges or specifications to which the evidence
relates, with or without prejudice.140
Admissibility of Evidence. The standard for the admissibility of evidence
in the MCA remains as it was stated in the M.O.; evidence is admissible if it is
deemed to have “probative value to a reasonable person.”141 However, the MCA
provides that the military judge is to exclude evidence if its probative value is
substantially outweighed by the “danger of unfair prejudice, confusion of the issues,
or misleading the commission”; or by “considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.”142
Coerced Statements. M.C.O. No. 1 did not specifically preclude the
admission of coerced evidence. In March 2006, DOD released M.C.I. No. 10
prohibiting prosecutors from introducing, and military commissions from admitting,
statements established to have been made as a result of torture.
The MCA prohibits the use of statements obtained through torture as evidence
in a trial, except as proof of torture against a person accused of committing torture.
For information obtained through coercion that does not amount to torture, the MCA
provides a different standard for admissibility depending on whether the statement
was obtained prior to or after the enactment of the DTA. Statements elicited through
such methods prior to the DTA are admissible if the military judge finds the “totality
of circumstances under which the statement was made renders it reliable and
possessing sufficient probative value” and “the interests of justice would best be
served” by admission of the statement. Statements taken after passage of the DTA
are admissible if, in addition to the two criteria above, the military judge finds that
“the interrogation methods used to obtain the statement do not violate the cruel,
unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and
Fourteenth Amendments to the U.S. Constitution.”
Accordingly, Mil. Comm. R. Evid. 304 provides that an accused’s statements
that were elicited by torture may not be admitted against him if he makes a timely
motion to suppress or an objection to the evidence. Statements introduced by any
party that are allegedly produced by lesser forms of coercion, where the degree of
coercion is disputed, may only be introduced after the military judge makes the

140 Id. The corresponding rule for courts-martial, Mil. R. Evid. 505, provides that the
military judge, upon finding that the lack of production of information would materially
prejudice a substantial right of the accused, must “dismiss the charges or specifications or
both to which the classified information relates.”
141 M.C.O. No. 1 § 6(D)(1). At courts-martial, evidence is admitted if it is “relevant,”
meaning “tending to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Mil. R. Evid. 401. At military commissions, evidence meets the standard of
“probative to a reasonable person” if “a reasonable person would regard the evidence as
making the existence of any fact that is of consequence to a determination of the
commission action more probable or less probable than it would be without the evidence.”
Mil. Comm. R. Evid. 403.
142 10 U.S.C. § 949a(b)(2)(F); Mil. Comm. R. Evid. 403.

appropriate findings according to the above formula. The defense is required to
make any objections to the proposed use of any statements by the accused prior to
entering a plea, if the trial counsel has disclosed the intent to use the statement,
otherwise the objection will be deemed to have been waived.143 The military judge
may require the defense to establish the grounds for excluding the statement.
However, the government has the burden of establishing the admissibility of the
evidence. If the statement is ruled admissible, the defense is permitted to present
evidence with respect to the voluntariness of the statement, and the military judge
must instruct the members to consider that factor in according weight to the evidence.
Testimony given by the accused for the purpose of denying having made a statement
or for disputing the admissibility of a statement is not to be used against him for any
purpose other than in prosecution for perjury or false statements.144
Mil. Comm. R. Evid. 304 is modeled on Mil. R. Evid. 304, which prescribes
rules for courts-martial to provide for the admission into evidence of confessions and
admissions (self-incriminating statements not amounting to an admission of guilt).
Under court-martial rules, such a statement and any evidence derived as a result of
such a statement are admissible only if the statement was made voluntarily.
Involuntary statements are those elicited through coercion or other means in violation
of constitutional due process. To be used as evidence of guilt against the accused,
a confession or admission must be corroborated by independent evidence.
Hearsay. Hearsay evidence is an out-of-court statement, whether oral, written,
or conveyed through non-verbal conduct, introduced into evidence to prove the truth
of the matter asserted. M.C.O. No. 1 did not exclude hearsay evidence. The MCA
allows for the admission of hearsay evidence that would not be permitted under the145
Manual for Courts-Martial only if the proponent of the evidence notifies the
adverse party sufficiently in advance of the intention to offer the evidence, as well as
the “particulars of the evidence (including [unclassified] information on the general
circumstances under which the evidence was obtained).”146 However, the evidence
is inadmissible only if the party opposing its admission “clearly demonstrates that the
evidence is unreliable or lacking in probative value.” An issue that may arise is
whether the rules provide for adequate information regarding the source of evidence
for an accused to be in a position to refute the reliability of its content.147
The rule regarding hearsay is provided in Mil. Comm. R. Evid. 801 to 807. In
contrast to the relatively restrictive rule applied in courts-martial, where hearsay is

143 Mil. Com. R. Evid. 304(d).
144 Mil. Com. R. Evid. 304(f).
145 Mil. R. Evid. 801-807 provide procedures for determining the admissibility of hearsay
evidence in courts-martial. It is unclear how, under the MCA, it is to be determined whether
certain hearsay evidence would be admissible in a general court-martial.
146 10 U.S.C. § 949a(b)(3)).
147 See Jencks v. United States, 353 U.S. 657 (1957)(“Requiring the accused first to show
conflict between the reports [in the possession of the government] and the testimony is
actually to deny the accused evidence relevant and material to his defense.”).

not admissible except as permitted by a lengthy set of exceptions,148 the military
commission rules provide that hearsay is admissible on the same basis as any other
form of evidence except as provided by these rules or an act of Congress. The rules
do not set forth any prohibitions with respect to hearsay evidence. Mil. Comm. Evid.

803 provides that hearsay may be admitted if it would be admissible at courts-

martial. Alternatively, hearsay is admissible if the party proffering it notifies the
adverse party thirty days in advance of trial or hearing of its intent to offer such
evidence and provides any materials in its possession regarding the time, place, and
conditions under which the statement was procured. Absent such notice, the military
judge is responsible for determining whether the opposing party has been provided
a “fair opportunity under the totality of the circumstances.”149 The opposing party
may preclude the introduction of such hearsay evidence by demonstrating by a
preponderance of the evidence that such hearsay is unreliable under the totality of the
ci rcum st ances.150
Classified Evidence. At military commissions convened pursuant to the
MCA, classified information is to be protected during all stages of proceedings and
is privileged from disclosure for national security purposes.151 Whenever the original
classification authority or head of the agency concerned determines that information
is properly classified and its release would be detrimental to the national security, the
military judge “shall authorize, to the extent practicable,” the “deletion of specified
items of classified information from documents made available to the accused”; the
substitution of a “portion or summary of the information”; or “the substitution of a
statement admitting relevant facts that the classified information would tend to
prove.” The military judge must consider a claim of privilege and review any
supporting materials in camera, and is not permitted to disclose the privileged152
information to the accused.
With respect to the protection of intelligence sources and methods relevant to
specific evidence, the military judge is required to permit trial counsel to introduce
otherwise admissible evidence before the military commission without disclosing the
“sources, methods, or activities by which the United States acquired the evidence”

148 Mil. R. Evid. 803 (exceptions for which the availability of the declarant is immaterial);
Mil. R. Evid. 804 (exceptions applicable when declarant is unavailable); Mil. R. Evid. 807
(residual exception, which permits all other hearsay not covered by express exceptions when
there are “equivalent circumstantial guarantees of trustworthiness” and the military judge
determines the statement relates to a material fact, is more probative to that fact than other
reasonably obtainable evidence, and that its introduction into evidence “serves the general
purposes of the rules and the interest of justice”).
149 Mil. Comm. R. Evid. 803(b)(2).
150 Mil. Comm. R. Evid. 803(c).
151 Defined in 10 U.S.C. §948a(4) as “[a]ny information or material that has been determined
by the United States Government pursuant to statute, Executive order, or regulation to
require protection against unauthorized disclosure for reasons of national security” and
“restricted data, as that term is defined in section 11y of the Atomic Energy Act of 1954 (42
U.S.C. 2014(y)).”
152 10 U.S.C. § 949d(f)(3).

if the military judge finds that such information is classified and that the evidence is
reliable. The military judge may (but need not) require trial counsel to present an
unclassified summary of such information to the military commission and the
defense, “to the extent practicable and consistent with national security.”
The MCA does not explicitly provide an opportunity for the accused to contest
the admissibility of substitute evidence proffered under the above procedures. It does
not appear to permit the accused or his counsel to examine the evidence or a
proffered substitute prior to its presentation to the military commission. If
constitutional standards required in the Sixth Amendment are held to apply to
military commissions, the MCA may be open to challenge for affording the accused
an insufficient opportunity to contest evidence. An issue may arise as to whether,
where the military judge is permitted to assess the reliability of evidence based on ex
parte communication with the prosecution, adversarial testing of the reliability of
evidence before the panel members meets constitutional requirements. If the military
judge’s determination as to reliability is conclusive, precluding entirely the
opportunity of the accused to contest its reliability, the use of such evidence may
serve as grounds to challenge the verdict.153 On the other hand, if evidence resulting
from classified intelligence sources and methods contains “‘particularized guarantees
of trustworthiness’ such that adversarial testing would be expected to add little, if
anything, to [its] reliability,”154 it may be admissible and survive challenge.
Classified evidence is privileged under Mil. Comm. R. Evid. 505. Commentary
to the rule notes that, because the defense has had no opportunity to evaluate the
evidence to formulate any objections, “the military judge’s consideration must
encompass a broad range of potential objections.”155 During the examination of
witnesses at trial, the trial counsel may make an objection to any question or motion
that might lead to the disclosure of classified information. The military judge is
required to take appropriate action, such as reviewing the matter in camera or
granting a delay to allow the trial counsel to confer with the relevant agency officer
to determine whether the privilege should be asserted. The judge may order that only
parts of documents or other materials be entered into evidence, or permit proof of the
contents of such materials without requiring introduction into evidence of the original
or a duplicate.156 In the event the defense reasonably expects to disclose classified
information at trial, defense counsel must notify the trial counsel and the judge, and
is precluded from disclosing information known or believed to be classified until the

153 Cf. Crane v. Kentucky, 476 U.S. 683 (1986)(evidence about the manner in which a
confession was obtained should have been admitted as relevant to its reliability and
credibility despite court’s determination that the confession was voluntary and need not be
154 Cf. Ohio v. Roberts, 448 U.S. 56, 66 (1980)(admissibility of hearsay evidence), but cf.
Crawford v. Washington, 541 U.S. 36 (2004)(“Admitting statements deemed reliable by a
judge is fundamentally at odds with the right of confrontation.... [The Confrontation Clause]
commands ... that reliability be assessed in a particular manner: by testing in the crucible of
155 M.M.C. at III-26.
156 Mil. Comm. R. Evid. 505(f). Similar procedures are permitted courts-martial. Mil. R.
Evid. 505(j).

government has had a reasonable opportunity to move for an in camera
determination as to protective measures.157
M.C.O. No. 1 required the prosecution to provide in advance to the accused any
evidence to be used for sentencing, unless good cause could be shown. The accused
was permitted to present evidence and make a statement during sentencing
proceedings; however, this right did not appear to mirror the right to make an
unsworn statement that military defendants may exercise in regular courts-martial,158
and apparently the statements were subject to cross-examination. The MCA provides
that the accused is entitled to have access to evidence relevant to sentencing, but does
not provide that the accused must be given the opportunity to make a statement.
Possible penalties under M.C.O. No. 1 included execution,159 imprisonment for
life or any lesser term, payment of a fine or restitution (which may be enforced by
confiscation of property subject to the rights of third parties), or “such other lawful
punishment or condition of punishment” determined to be proper. Detention
associated with the accused’s status as an “enemy combatant” was not to count
toward serving any sentence imposed.160 A sentence agreed to by the accused in plea
agreements was binding on the commission, unlike regular courts-martial, in which
the agreement is treated as the maximum sentence. Similar to the practice in military
courts-martial, the death penalty could only be imposed upon a unanimous vote of
the commission.161 In courts-martial involving any crime punishable by death,
however, both the conviction and the death sentence must be by unanimous vote.162
The MCA provides that military commissions may adjudge “any punishment
not forbidden by [it or the UCMJ], including the penalty of death….”163 It
specifically proscribes punishment “by flogging, or by branding, marking, or
tattooing on the body, or any other cruel or unusual punishment, ... or [by the] use of
irons, single or double.”164 A vote of two-thirds of the members present is required
for sentences of up to 10 years. Longer sentences require the concurrence of three-

157 Mil. Comm. R. Evid. 505(g). This rule is virtually identical to Mil. R. Evid. 505(h).
158 See NIMJ, supra note 36, at 37 (citing United States v. Rosato, 32 M.J. 93, 96 (C.M.A.


159 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.
160 M.C.I. No. 7 § 3(A).
161 M.C.O. No. 1 § 6(F).
162 10 U.S.C. § 851.
163 10 U.S.C. § 948d.
164 10 U.S.C. § 949s.

fourths of the members present. The death penalty must be approved unanimously,
both as to guilt and to the sentence, by all members present for the vote.
In cases where the death penalty is sought, a panel of 12 members is required
(unless the convening authority certifies that 12 members are not “reasonably
available” because of physical conditions or military exigencies, in which case no
fewer than nine are required), with all members present for the vote agreeing on the
sentence. The death penalty must be expressly authorized for the offense,165 and the
charges referred to the commission must have expressly sought the penalty of
death.166 The death sentence may not be executed until the commission proceedings
have been finally adjudged lawful and all appeals are exhausted,167 and after the
President approves the sentence. 10 U.S.C. § 950i(b)-(c). The President is permitted
to “commute, remit, or suspend [a death] sentence, or any part thereof, as he sees fit.”
10 U.S.C. § 950i(b). For sentences other than death, the Secretary of the Defense or
the convening authority are permitted to adjust the sentence downward. 10 U.S.C.
§ 950i(d).
Chapter X of the Rules for Military Commissions covers sentencing.
“Aggravating factors” that may be presented by the trial counsel include evidence
that “any offense of which the accused has been convicted comprises a violation of
the law of war.”168 Unlike the rules for courts-martial, there is no express opportunity
for the trial counsel to present evidence regarding rehabilitative potential of the
accused. However, the rules provide that the accused may make a sworn or unsworn
statement to present mitigating or extenuating circumstances or to rebut evidence of
aggravation submitted by the trial counsel. In the case of an unsworn statement,
which may be written or oral, the accused is not subject to cross-examination by the
trial counsel.169
The death penalty may only be adjudged if expressly authorized for the offense
listed or if it is authorized under the law of war, all twelve members of the
commission voted to convict the accused, found that at least one of the listed
aggravating factors exists, agreed that such factors outweigh any extenuating or
mitigating circumstances, and voted to impose the death penalty. Aggravating

165 The MCA permits the death penalty for convictions of murder of a protected person or
murder in violation of the law of war, or spying; and if death results, any of the following
crimes: attacking civilians, taking hostages, employing poison or similar weapon, using
protected persons as a shield, torture or cruel or inhuman treatment, intentionally causing
serious bodily injury, maiming, using treachery or perfidy, hijacking or hazarding a vessel
or aircraft, terrorism, and conspiracy to commit any of the crimes enumerated in 10 U.S.C.
§ 950v.
166 10 U.S.C. § 949m.
167 An accused sentenced to death may neither waive his right to appeal nor withdraw an
appeal. 10 U.S.C. § 950c.
168 R.M.C. 1001(b)(2). Otherwise, aggravating factors are similar to those listed in R.C.M.

1001(b)(5)(D) for courts-martial.

169 R.M.C. 1001(c)(2)(D). The trial counsel may rebut the statement. This procedure does
not appear to differ substantially from that used in courts-martial.

factors include that “the accused was convicted of an offense, referred as capital, that
is a violation of the law of war,” that the offense resulted in the death of or
substantially endangered the life of one or more other persons, the offense was
committed for the purpose of receiving money or a thing of value, the offense
involved torture or certain other mistreatment, the accused was also found guilty of
another capital crime, the victim was below the age of fifteen, or that the victim was
a protected person.170 Other aggravating circumstances include specific law-of-war
violations, which, except for spying, are not to be applied to offenses of which they
are already an element.
Post-Trial Procedure
Criticism leveled at the language of the M.O. included concern that it did not
include an opportunity for the accused to appeal a conviction and that it seemingly
barred habeas corpus relief.171 Other concerns were that it appeared to allow the
Secretary of Defense (or the President) the discretion to change the verdict from not
guilty to guilty, and that it did not adequately protect persons from double
jeopardy. 172
Review and Appeal. M.C.O. No.1 addressed some of the above concerns by
providing for an administrative review of the trial record by the Appointing Authority
and then by a review panel consisting of three military officers, one of whom was
required to have experience as a judge. The review panel could, at its discretion,
review any written submissions from the prosecution and the defense, who did not
necessarily have an opportunity to view or rebut the submission from the opposing173
party. The review panel, upon forming a “firm and definite conviction that a
material error of law occurred,” could return the case to the Appointing Authority for
further proceedings. The Appointing Authority was bound to dismiss a charge if the

170 R.M.C. 1004(c).
171 Persons subject to the M.O. were described as not privileged to “seek any remedy or
maintain any proceeding, directly or indirectly” in federal or state court, the court of any
foreign nation, or any international tribunal. M.O. at § 7(b). However, the Administration
originally indicated that defendants were permitted to petition a federal court for a writ of
habeas corpus to challenge the jurisdiction of the military commission. See Alberto R.
Gonzales, Martial Justice, Full and Fair, NEW YORK TIMES (op-ed), November 30, 2001
(stating that the original M.O. was not intended to preclude habeas corpus review). Rasul
v. Bush clarified that the detainees at Guantanamo Bay do have access to federal courts, but
the extent to which the findings of military commissions will be reviewable was not
clarified. 124 S. Ct. 2686 (2004). Congress, by enacting the DTA and the MCA, has
revoked the jurisdiction of federal courts over habeas corpus petitions filed by or on behalf
of aliens detained by the United States as enemy combatants. For an analysis of the habeas
provisions in these Acts, see CRS Report RL33180, Enemy Combatant Detainees: Habeas
Corpus Challenges in Federal Court, by Jennifer K. Elsea and Kenneth Thomas.
172 See Laurence H. Tribe, Trial by Fury, THE NEW REPUBLIC, December 10, 2001.
173 The convening authority of a general court-martial is required to consider all matters
presented by the accused. 10 U.S.C. § 860. The MCA contains a similar provision. 10
U.S.C. § 950b.

the review panel determined that one or more charges should be dismissed.174 For
other cases involving errors, the Appointing Authority was required to return the case
to the military commission. Otherwise, the case was to be forwarded to the Secretary
of Defense with a written recommendation. (Under the UCMJ, the trial record of a
military commission would be forwarded to the appropriate JAG first.)175 After
reviewing the record, the Secretary of Defense was to forward the case to the
President, or he could return it for further proceedings for any reason, not explicitly
limited to material errors of law. The M.C.O. did not indicate what “further
proceedings” might entail, or what was to happen to a case that had been
The MCA provides for the establishment of a new review body, the Court of
Military Commission Review (CMCR), comprised of appellate military judges who
meet the same qualifications as military judges or comparable qualifications for
civilian judges.176 The accused may appeal a final decision of the military
commission with respect to issues of law to the CMCR. If this appeal fails, the
accused may appeal the final decision to the United States Court of Appeals for the
District of Columbia Circuit.177 Appellate court decisions may be reviewed by the
Supreme Court under writ of certiorari.178
Like the UCMJ, the MCA prohibits the invalidation of a verdict or sentence due
to an error of law unless the error materially prejudices the substantial rights of the
accused.179 The M.C.O. did not contain such explicit prohibition, but M.C.I. No. 9
defined “Material Error of Law” to exclude variances from the M.O. or any of the
military orders or instructions promulgated under it that would not have had a
material effect on the outcome of the military commission.180 M.C.I. No. 9 allowed
the review panel to recommend the disapproval of a finding of guilty on a basis other

174 M.C.I. No. 9 § 4(C).
175 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).
176 10 U.S.C. § 950f.
177 10 U.S.C. § 950g. No collateral attack on the verdict is permitted. 10 U.S.C. § 949j(b)
provides that
Except as otherwise provided in this chapter and notwithstanding any other
provision of law (including section 2241 of title 28 or any other habeas corpus
provision), no court, justice, or judge shall have jurisdiction to hear or consider
any claim or cause of action whatsoever, including any action pending on or filed
after the date of the enactment of the Military Commissions Act of 2006, relating
to the prosecution, trial, or judgment of a military commission under this chapter,
including challenges to the lawfulness of procedures of military commissions
under this chapter.
178 10 U.S.C. § 950g.
179 10 U.S.C. § 859; 10 U.S.C. § 950a(a).
180 M.C.I. No. 9 § 4(C)(2)(a).

than a material error of law,181 but did not indicate what options the review panel
would have with respect to findings of not guilty.
Post-trial procedures for military commissions are set forth in Chapter XI of the
Rules for Military Commissions. Post trial proceedings may be conducted to correct
errors, omissions, or inconsistencies, where the revision can be accomplished without
material prejudice to the accused.182 Sessions without members may be ordered to
reconsider any trial ruling that substantially affects the legal sufficiency of any
findings or guilty or the sentence.
Once the record is authenticated and forwarded to the convening authority, the
accused is permitted, within twenty days unless additional time is approved, to
submit matters relevant to whether to approve the sentence or disapprove findings of
guilt.183 The convening authority is required to consider written submissions. If the
military commission has made a finding of guilty, the legal advisor also reviews the
record and provides recommendations to the convening authority.184 The convening
authority may not take an action disapproving a finding of not guilty or a ruling that
amounts to a finding of not guilty.185 However, in the case of a finding of not guilty
by reason of lack of mental responsibility, the convening authority may commit the
accused to a suitable facility for treatment pending a hearing to determine whether
the accused may be released or detained under less than the most stringent
circumstances without posing a danger to others.186
Rehearings of guilty findings may be ordered at the discretion of the convening
authority, except where there is a lack of sufficient evidence to support the charge or
lesser included offense. Rehearings are permitted if evidence that should not have
been admitted can be replaced by an admissible substitute.187 Any part of a sentence
served pursuant to the military commission’s original holding counts toward any
sentence that results from a hearing for resentencing.188
In all cases in which the convening authority approves a finding of guilty, the
record is forwarded to the Court of Military Commission Review (CMCR), unless
the accused (where the sentence does not include death) waives review.189 No relief
may be granted by the CMCR unless an error of law prejudiced a substantial trial

181 M.C.I. No. 9 § 4(C)(1)(b).
182 R.M.C. 1102(b).
183 R.M.C. 1105.
184 R.M.C. 1106.
185 R.M.C. 1107.
186 R.M.C. 1102A.
187 R.M.C. 1107(e).
188 R.M.C. 1107(f)(5).
189 R.M.C. 1111. Courts-martial findings are first forwarded to the Judge Advocate General
of the particular service for legal review, R.C.M. 1112.

right of the accused.190 The accused has twenty days after receiving notification of
the CMCR decision to submit a petition for review with the U.S. Court of Appeals
for the District of Columbia Circuit. Within two years after a military commission
conviction becomes final, an accused may petition the convening authority for a new
trial on the ground of newly discovered evidence or fraud on the military
commission. 191
Protection against Double Jeopardy. The M.C.O. provided that the
accused could not be tried for the same charge twice by any military commission
once the commission’s finding on that charge became final (meaning once the verdict192
and sentence had been approved). Therefore, apparently, jeopardy did not attach
— there would not have been a “trial” — until the final verdict was approved by the
President or the Secretary of Defense. In contrast, at general courts-martial, jeopardy
attaches after the first introduction of evidence by the prosecution. If a charge is
dismissed or is terminated by the convening authority after the introduction of
evidence but prior to a finding, through no fault of the accused, or if there is a finding
of not guilty, the trial is considered complete for purposes of jeopardy, and the
accused may not be tried again for the same charge by any U.S. military or federal193
court without the consent of the accused. Although M.C.O. No. 1 provided that an
authenticated verdict194 of not guilty by the commission could not be changed to195
guilty, the rules allowed either the Secretary of Defense or the President to
disapprove the finding and return the case for “further proceedings” prior to the
findings’ becoming final, regardless of the verdict. The possibility that a finding of
not guilty could be referred back to the commission for rehearing may have had196
double jeopardy implications.
Like M.C.O. No. 1, the MCA provides that “[n]o person may, without his
consent, be tried by a military commission under this chapter a second time for the197
same offense.” Jeopardy attaches when a guilty finding becomes final after review
of the case has been fully completed. The MCA prevents double jeopardy by

190 R.M.C. 1201.
191 R.M.C. 1210.
192 M.C.O. No. 1 § 5(P). The finding was to become final when “the President or, if
designated by the President, the Secretary of Defense makes a final decision thereon
pursuant to Section 4(c)(8) of the President’s Military Order and in accordance with Section

6(H)(6) of [M.C.O. No. 1].” Id. § 6(H)(2).

193 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.
194 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.”
195 M.C.O. No. 1 § 6(H)(2).
196 The UCMJ does not permit rehearing on a charge for which the accused is found on the
facts to be not guilty.
197 10 U.S.C. § 949h.

expressly eliminating the possibility that a finding that amounts to a verdict of not
guilty is subject to reversal by the convening authority or to review by the CMCR or
the D.C. Circuit. The severity of a sentence adjudged by the military commission
cannot be increased on rehearing unless the sentence prescribed for the offense is
mandatory.198 These protections are covered in Chapter XI of the Rules for Military
Commission. Proceedings are not authorized to reconsider any ruling that amounts
to a finding of not guilty as to any charge or specification, except with respect to a
charge where the record indicates guilt as to a specification that may be charged as
a separate offense under the MCA.199 Proceedings for increasing the severity of a
sentence are not permitted unless the commission failed to adjudge a proper sentence
under the MCA or the sentence was less than that agreed to in a plea agreement.200
M.C.O. No. 1 did not provide a specific form for the charges, and did not
require that they be authenticated by an oath or signature.201 The inadequacy of an
indictment in specifying charges could raise double jeopardy concerns.202 If the
charge does not adequately describe the offense, another trial for the same offense
under a new description is not as easily prevented. The MCA requires that charges
and specifications be signed under oath by a person with personal knowledge or
reason to believe that matters set forth therein are true.203 The charges must be
served on the accused written in a language he understands.204 There is no express
requirement regarding the specificity of the charges in the MCA, but the Rules for
Military Commission provide that the charge must state the punitive article of the act,
law of war, or offense as defined in the Manual for Military Commissions that the
accused is alleged to have violated.205 A specification must allege every element of
the charged offense expressly or by necessary implication.206 The Rules for Military
Commissions make the trial counsel responsible for causing the accused to be served
a copy of the charges in English and another language that the accused understands,
where appropriate.207 After the accused is arraigned, the military judge may permit
minor changes in the charges and specifications before findings are announced if no

198 10 U.S.C. § 950b(d)(2)(B).
199 R.M.C. 1102(c).
200 Id. At courts-martial, sessions to increase the severity of a sentence are permitted only
if the sentence is mandatory. R.C.M. 1102(c).
201 See M.C.O. No. 1 § 6(A)(1).
202 See NIMJ, supra note 36, at 39.
203 10 U.S.C. § 948q.
204 10 U.S.C. § 948s.
205 R.M.C. 307.
206 Id.
207 R.C.M. 602.

substantial right of the accused is prejudiced, but no major changes may be made
over the objection of the accused without a new referral.208
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.209 A federal
criminal trial, as a trial conducted under the same sovereign as a military
commission, could have double jeopardy implications if the accused had already been
tried by military commission for the same crime or crimes, even if the commission
proceedings did not result in a final verdict. The federal court would face the issue
of whether jeopardy had already attached prior to the transfer of the individual from
military control to other federal authorities. The MCA does not expressly prohibit
trial in another forum.
Conversely, the M.O. provided that the President may determine at any time that
an individual is subject to the M.O., at which point any state or federal authorities
holding the individual would be required to turn the accused over to military
authorities. If the accused were already the subject of a federal criminal trial under
charges for the same conduct that resulted in jurisdiction over the accused under the
MCA, and if jeopardy had already attached in the federal trial, double jeopardy could
be implicated by a new trial before a military commission. The MCA does not
explicitly provide for a double jeopardy defense under such circumstances, but the
Rules for Military Commissions provide the accused a waivable right to move to
dismiss charges on the basis that he has previously been tried by a federal civilian
court for the same offense.210

208 R.C.M. 602.
209 M.O. § 7(e).
210 R.M.C. 907.

Proposed Legislation
A number of bills have been introduced in the 110th Congress to amend the
MCA. For additional legislation pertaining to detainees and habeas corpus, see CRS
Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in
Federal Court, by Jennifer K. Elsea and Kenneth R. Thomas.
H.R. 1585, the National Defense Authorization Act for Fiscal Year 2008 (as
passed by the House of Representatives on May 17, 2007), would require a report
within 60 days after enactment that contains a plan for the transfer of each individual
presently detained Guantanamo Bay, Cuba, who is or has ever been classified as an
“enemy combatant.” It would also require a report identifying detainees who are
charged with crimes, those who are eligible for release, and those who are not
charged but ineligible for release, supplemented by a list of “actions required to be
undertaken, by the Secretary of Defense, possibly the heads of other Federal agencies,
and Congress, to ensure that detainees who are subject to an order calling for their
release or transfer from the Guantanamo Bay facility have, in fact, been released.”
Section 1057.
H.R. 2543, the Military Commissions Revision Act of 2007, would redefine
“unlawful enemy combatant” to mean “a person who has engaged in, attempted, or
conspired to engage in acts of armed hostilities or terrorism against the United States
or its co-belligerents, and who is not a lawful enemy combatant.” It would permit the
admission into evidence of statements obtained by a degree of coercion less than
torture in military commission only if the military judge finds that
(1) the totality of the circumstances indicates that the statement possesses
probative value to a reasonable person;
(2) the interests of justice would best be served by admitting the statement into
evidence; and

3) the interrogation methods used to obtain the statement do not amount to cruel,

inhuman or degrading treatment.
The bill would also repeal 10 U.S.C. § 948d(c) so that CSRT determinations would
no longer be dispositive for the purpose of establishing jurisdiction of military
commissions, and would restore habeas corpus for persons detained as ‘enemy
combatants’ for more than two years and have not been charged with a crime.
S. 1547 and S. 1548, the National Defense Authorization Act for Fiscal Year
2008 (reported by the Senate Armed Services Committee and the Senate Select
Committee on Intelligence on June 5 and June 9, respectively), would make CSRTs
mandatory for all detainees and would require the Secretary of Defense to provide
procedural rules in some ways similar to those prescribed by the MCA for military
commissions. Section 1023. Specifically, detainees would have a right to an
attorney for CSRT proceedings, would be entitled to obtain evidence and witnesses
under rules consistent with those that apply to military commissions, and the
detainee’s counsel would have an opportunity to view classified evidence, including
evidence to be admitted against the detainee and any potentially exculpatory

evidence, consistent with the procedures for the protection of classified information
in section 949d(f) of title 10, U.S. Code. The detainee would be entitled to have
access to all unclassified evidence and “an unclassified summary of the classified
evidence admitted against the detainee that is sufficiently specific to provide the
detainee a fair opportunity to respond, with the assistance of counsel, to such
evidence.” Information obtained through torture would not be admissible into
evidence before a CSRT. Information obtained through lesser forms of coercion
would be admissible under the same standards as in military commissions, amended
as described below.
With respect to military commissions, the bills would define “unlawful enemy
combatant” to include any alien who has been a “knowing and active participant in
an organization that engaged in hostilities against the United States.” They would
also prohibit the use of information acquired through coercion not amounting to
cruel, inhuman or degrading treatment unless the statement is found to be reliable and
probative; its admission would best serve the interests of justice; and either
1) the tribunal determines that the alleged coercion was incidental to the
lawful conduct of military operations at the point of apprehension;
2) the statement was voluntary; or
3) the interrogation methods used to obtain the statement do not amount
to cruel, inhuman, or degrading treatment prohibited by section 1003 of the
Detainee Treatment Act of 2005 (42 U.S.C. § 2000dd).
The rules for the admission of hearsay evidence would be amended to eliminate
the reference to the requirements and limitations applicable to the disclosure of
classified information.” Rather than requiring the party opposing admission to
demonstrate that the evidence is unreliable or lacking in probative value, the bills
would make the military judge responsible for determining whether “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.”
H.R. 2710 would restore habeas corpus for detainees. It would eliminate the
CSRT review procedure, but retain the DTA provision for appealing military
commission decisions, in addition to habeas corpus. H.R. 1416 and S. 185, the
Habeas Corpus Restoration Act of 2007, would remove habeas corpus restrictions on
detainees and clarify that habeas corpus is available to challenge military commission
decisions. H.R. 1416 would also strike the prohibition in section 5 of the MCA on
the use of the Geneva Conventions as a source of rights in habeas corpus and other
court actions against the United States or its officers and employees. H.R. 2826
would amend 28 U.S.C. § 2241(e) to allow habeas corpus actions and requests for
injunctive relief against transfer, except in cases of detainees held in an active war
zone where the Armed Forces are implementing the Prisoner of War (POW)
regulation, AR 190-8, but would prohibit all other court actions by detainees.
However, it would also amend the MCA in such a way as to maintain the current
limited appeal of military commission decisions, in addition to habeas corpus. H.R.

267, the Military Commissions Habeas Corpus Restoration Act of 2007, would
eliminate restrictions on habeas corpus in 28 U.S.C. § 2241(e), but would eliminate
jurisdiction over all other actions, except for DTA challenges of CSRT
determinations and military commission decisions.
S. 1876, the National Security with Justice Act of 2007, would redefine “enemy
combatant” to mean a person who is not a lawful enemy combatant who has engaged
in hostilities against the United States; or has purposefully and materially supported
hostilities against the United States (other than hostilities engaged in as a lawful
enemy combatant). It would expressly exclude from the definition of “enemy
combatant” U.S. citizens and aliens lawfully within the United States who are taken
into custody there. Section 201. The bill would eliminate the MCA provision for
exclusivity of its appeals provisions, 10 U.S.C. § 950g, and would eliminate the
provision in the DTA for appeals of status determinations, but would extend a
statutory right of habeas corpus to detainees, giving the D.C. Federal District Court
jurisdiction to hear challenges to detention and challenges of final decisions of
military commissions. Section 301. Habeas corpus challenges would not be permitted
by persons detained in a foreign zone of military operations where the Secretary of
Defense certifies that the United States is implementing its detainee regulations,
Army Regulation 190-8, or any successor regulation.
S. 576 and its companion bill, H.R. 1415, the Restoring the Constitution Act of
2007, would redefine “unlawful enemy combatant” to mean an individual who is not
a lawful combatant who “directly participates in hostilities in a zone of active combat
against the United States,” or who “planned, authorized, committed, or intentionally
aided the terrorist acts on the United States of September 11, 2001,”or harbored such
a person. The bills would also expressly limit the definition of “unlawful enemy
combatant” for use in designating individuals as eligible for trial by military
The bills would require procedural and evidentiary rules for military
commissions to conform to the UCMJ except where expressly provided otherwise,
and would limit the Secretary of Defense’s authority to make exceptions to
commission procedures and rules of evidence to those made necessary by unique
circumstances of military or intelligence operations during hostilities.
The bills would repeal the authority for civilian attorneys to act as trial
(prosecution) counsel in a commission proceeding, but would permit civilian
attorneys to act as defense counsel, with the assistance of detailed defense counsel.
An accused who elects to represent himself would be authorized to obtain the
assistance of civilian counsel in addition to detailed defense counsel.
The bills would modify the evidentiary requirements of the MCA in several
respects. The provision for permitting evidence acquired without a warrant would
not apply to evidence acquired within the United States. The responsibility for
determining the reliability of hearsay evidence would fall on the military judge, on
motion of counsel, rather than requiring the party opposing the evidence to
demonstrate its lack of reliability. All statements obtained through coercion would

be inadmissible before a military commission, except against a person accused of
coercion. The military judge would have the authority to order trial counsel to
disclose to defense counsel the sources, methods, or activities by which witnesses or
evidence against the accused was obtained, if he determines that that information
might reasonably tend to affect the weight given to the out of court statement by the
members of the military commission. The prosecution could withdraw the evidence
in lieu of compliance with such an order. If the military judge were to determine that
substitute information describing evidence of an exculpatory nature insufficiently
protected the accused’s opportunity for a fair trial, the judge could dismiss some or
all of the charges or specifications or take such other action as he deemed necessary
in the interest of justice.
Habeas corpus would be available to detainees to challenge their detention, but
other causes of action would be eliminated. The bills would route appeals of military
commissions to the Court of Appeals for the Armed Forces rather than the Court of
Military Commissions Review. They would also eliminate the MCA provision
excluding Geneva Conventions as a “source of rights,” 10 U.S.C. § 948b(g),
replacing it with a provision stating that military commission rules that are
determined to be inconsistent with the Geneva Conventions are to have no effect.
The MCA would expressly state that the President’s authority to interpret the Geneva
Conventions is subject to congressional oversight and judicial review. The bills
would provide for expedited challenges to the MCA in the D.C. district court.
S. 447, the Federal Death Penalty Abolition Act of 2007, would eliminate the
death penalty for crimes triable by military commissions in 10 U.S.C. § 950v(b).
The following tables provide a comparison of the military tribunals under the
regulations issued by the Department of Defense, standard procedures for general
courts-martial under the Manual for Courts-Martial, and military tribunals as
authorized by the Military Commissions Act of 2006. Table 1 compares the legal
authorities for establishing military tribunals, the jurisdiction over persons and
offenses, and the structures of the tribunals. Table 2, which compares procedural
safeguards incorporated in the previous DOD regulations (in force prior to the
Hamdan decision and the enactment of the MCA) and the UCMJ, follows the same
order and format used in CRS Report RL31262, Selected Procedural Safeguards in
Federal, Military, and International Courts, by Jennifer K. Elsea, in order to
facilitate comparison of the proposed legislation to safeguards provided in federal
court, the international military tribunals that tried World War II crimes at
Nuremberg and Tokyo, and contemporary ad hoc tribunals set up by the UN Security
Council to try crimes associated with hostilities in the former Yugoslavia and

Table 1. Comparison of Courts-Martial and Military Commission Rules
General Courts MartialMilitary Commission Order No. 1 (M.C.O.)Military Commissions Act of 2006
U.S. Constitution, Article I, § 8.U.S. Constitution, Article II; PresidentialU.S. Constitution, Article I, § 8.
Military Order of Nov. 13, 2001 (M.O).
ocedureRules are provided by the Uniform Code ofRules are issued by the Secretary of DefenseThe Secretary of Defense may prescribe rules
Military Justice (UCMJ), chapter 47, title 10,pursuant to the M.O. No other rules apply of evidence and procedure for military
and the Rules for Courts-Martial (R.C.M.) and(presumably excluding the UCMJ). § 1.commissions not inconsistent with the MCA.
iki/CRS-RL33688the Military Rules of Evidence (Mil. R. Evid.),Rules applicable to courts-martial under the
g/wissued by the President pursuant to art. 36,The President declared it “impracticable” toUCMJ are to apply except as otherwise
s.orUCMJ.employ procedures used in federal court,specified. 10 U.S.C. § 949a(a).
leak10 U.S.C. § 836.pursuant to 10 U.S.C. § 836.
The Secretary of Defense, in consultation with
://wikithe Attorney General, may make exceptions to
httpUCMJ procedural rules “as may be required
by the unique circumstances of the conduct of
military and intelligence operations during
hostilities or by other practical need.”

10 U.S.C.§ 949a(b).

The rules must include certain rights as listed
in § 949a(b)(2), but need not include those
listed in § 949a(b)(3).
Pursuant to the above authority, the Secretary
of Defense published the Manual for Military

General Courts MartialMilitary Commission Order No. 1 (M.C.O.)Military Commissions Act of 2006
Commissions (M.M.C.), including the Rules
for Military Commissions (R.M.C.) and the
Military Commission Rules of Evidence (Mil.
Comm. R. Evid.).
Members of the armed forces, cadets,Individual subject to M.O., determined byAny “alien unlawful combatant” is subject to
ersonsmidshipmen, reservists while on inactive-dutyPresident to be:trial by military commission.
training, members of the National Guard or1. a non-citizen, and 10 U.S.C. § 948c.
iki/CRS-RL33688Air National Guard when in federal service,prisoners of war in custody of the armed2. a member of Al Qaeda or person who hasengaged in acts related to terrorism against theAn “unlawful enemy combatant” is “a person
g/wforces, civilian employees accompanying theUnited States, or who has harbored one orwho has engaged in hostilities or who has
s.orarmed forces in time of declared war ormore such individualspurposefully and materially supported
leakcontingency operation, and certain others,and is referred to the commission by thehostilities against the United States or its
://wikiincluding “persons within an area leased by orAppointing”; or a person determined to be
httpotherwise reserved or acquired for the use of§ 3(A).an unlawful enemy combatant by a CSRT or
the United States.”other competent tribunal established under the
10 U.S.C. § 802.authority of the President or the Secretary of
Individuals who are subject to militaryDefense, which determination is dispositive of
tribunal jurisdiction under the law of war maystatus. 10 U.S.C. §§ 948a and 948d(c).
also be tried by general court martial.
10 U.S.C. § 818.“Lawful combatant” is defined in terms of
GPW Art. 4. 10 U.S.C. § 948a(2).
R.M.C. 201 and 202 provide for jurisdictional
requirements of military commissions in
accordance with the MCA.

General Courts MartialMilitary Commission Order No. 1 (M.C.O.)Military Commissions Act of 2006
Any offenses made punishable by the UCMJ;Offenses in violation of the laws of war and allA military commission has jurisdiction to try
fensesoffenses subject to trial by military tribunalother offenses triable by military commission. any offense made punishable by the MCA or
under the law of war. § 3(B).the law of war when committed by an alien
10 U.S.C. § 818.unlawful enemy combatant before, on, or after
M.C.I. No. 2 clarifies that terrorism andSeptember 11, 2001. 10 U.S.C. § 948d(a).
related crimes are “crimes triable by military
commission.” These include (but are notOffenses listed in 10 U.S.C. §§ 950q-w and
limited to): willful killing of protectedPar IV of the M.M.C. include the following:
iki/CRS-RL33688persons; attacking civilians; attacking civilianmurder of protected persons; attacking
g/wobjects; attacking protected property;civilians, civilian objects, or protected
s.orpillaging; denying quarter; taking hostages; property; pillaging; denying quarter; taking
leakemploying poison or analogous weapons;hostages; employing poison or similar
://wikiusing protected persons as shields; usingprotected property as shields; torture; causingweapons; using protected persons or propertyas shields; torture, cruel or inhuman treatment;
httpserious injury; mutilation or maiming; use ofintentionally causing serious bodily injury;
treachery or perfidy; improper use of flag ofmutilating or maiming; murder in violation of
truce; improper use of protective emblems;the law of war; destruction of property in
degrading treatment of a dead body; and rape;violation of the law of war; using treachery or
hijacking or hazarding a vessel or aircraft;perfidy; improperly using a flag of truce or
terrorism; murder by an unprivilegeddistinctive emblem; intentionally mistreating a
belligerent; destruction of property by andead body; rape; sexual assault or abuse;
unprivileged belligerent; aiding the enemy;hijacking or hazarding a vessel or aircraft;
spying; perjury or false testimony; andterrorism; providing material support for
obstruction of justice; aiding or abetting;terrorism; wrongfully aiding the enemy;
solicitation; command/superior responsibility -spying, contempt; perjury and obstruction of

General Courts MartialMilitary Commission Order No. 1 (M.C.O.)Military Commissions Act of 2006
mpositionA military judge and not less than fiveFrom three to seven members, as determinedA military judge and at least five members, 10
members, or if requested, except in capitalby the Appointing Authority. § 4(A)(2).U.S.C. § 948m; R.M.C. 501, unless the death
cases, a military judge alone. R.C.M. 501.penalty is sought, in which case no fewer than

12 members must be included, 10 U.S.C.

§ 949m(c). R.M.C. 501 provides that, in death
penalty cases where twelve members are not
reasonably available because of physical
conditions or military exigencies, the
iki/CRS-RL33688convening authority may approve a
g/wcommission with as few as 9 members.
leak Congressional Research Service.


Table 2. Comparison of Procedural Safeguards
General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
ption ofIf the defendant fails to enter aThe accused shall be presumedBefore a vote is taken on theIf the defendant fails to enter a
proper plea, a plea of not guiltyinnocent until proven guilty. §findings, the military judge mustproper plea, a plea of not guilty
will be entered. R.C.M. 910(b).5(B).instruct the commission memberswill be entered. R.M.C. 910(b).
“that the accused must be
Members of court martial mustCommission members must basepresumed to be innocent until hisMembers of military commission
be instructed that the “accusedtheir vote for a finding of guiltyguilt is established by legal andmust be instructed that the
must be presumed to be innocenton evidence admitted at trial. §§competent evidence beyond“accused must be presumed to be
until the accused’s guilt is5(C); 6(F).reasonable doubt.” 10 U.S.C. §innocent until the accused’s guilt
established by legal and established by legal and
iki/CRS-RL33688competent evidence beyond aThe Commission must determinecompetent evidence beyond a
g/wreasonable doubt.” R.C.M.the voluntary and informed natureIf an accused refuses to enter areasonable doubt.” R.M.C.
s.or920(e).of any plea agreement submittedplea or pleads guilty but provides920(e).
leakby the accused and approved byinconsistent testimony, or if it
The accused shall be properlythe Appointing Authority beforeappears that he lacks properThe accused shall be properly
://wikiattired in uniform with gradeadmitting it as stipulation intounderstanding of the meaning andattired in the uniform or dress
httpinsignia and any decorations toevidence. § 6(B).effect of the guilty plea, theprescribed by the military judge.
which entitled. Physical restraintcommission must treat the plea asPhysical restraint shall not be
shall not be imposed unlessdenying guilt.imposed during open sessions
prescribed by the military judge. 10 U.S.C. § 949i.unless prescribed by the military
R.C.M. 804.judge. R.M.C. 804(d).
ght toCoerced confessions orNot provided. Neither the M.O.Article 31, UCMJ, is expresslyA statement obtained by use of
main Silentconfessions made in custodynor M.C.O. requires a warning ormade inapplicable. 10 U.S.C.torture shall not be admitted into
without statutory equivalent ofbars the use of statements made§ 948b(d).evidence against any party or
Miranda warning are notduring military interrogation, orwitness, except against a person
admissible as evidence, unless aany coerced statement, fromConfessions allegedly elicitedaccused of torture as evidence
narrow “public safety” exceptionmilitary commission proceedings.through coercion or compulsorythat the statement was made.
applies. Art. 31, UCMJ, 10Art. 31(a), UCMJ (10 U.S.C.self-incrimination that areR.M.C. 304.

U.S.C. § 831.§ 831) bars persons subject to itotherwise admissible are not to be

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
Once a suspect is in custody orfrom compelling any individual toexcluded at trial unless they areWhen the degree of coercion
charges have been preferred, themake a confession, but there doesinadmissible under section 948r. inherent in the production of a
suspect or accused has the right tonot appear to be a remedy in case10 U.S.C. § 949a(b)(2)(C).statement offered by either party
have counsel present forof violation. No person subject tois disputed, such statement may
questioning. Once the right tothe UCMJ may compel anySection 948r provides thatbe admitted, if obtained before
counsel is invoked,person to give evidence beforestatements elicited through tortureDecember 30, 2005, only if the
questioning material to theany military tribunal if themay not be entered into evidencemilitary judge finds that (A) the
allegations or charges must stop. evidence is not material to theexcept to prove a charge oftotality of the circumstances
Mil. R. Evid. 305(d)(1).issue and may tend to degradetorture. renders the statement reliable and
him. 10 U.S.C. § 831.Statements obtained prior to thesufficiently probative; and (B)
The prosecutor must notify theenactment of the DTA throughthe interests of justice would be
iki/CRS-RL33688defense of any incriminatingcoercion that does not amount toserved. Statements obtained on
g/wstatements made by the accusedtorture is admissible if the militaryor after December 30, 2005, may
s.orthat are relevant to the case priorjudge finds that the “totality ofbe admitted only if the military
leakto the arraignment. Motions tocircumstances under which thejudge finds that, in addition to
suppress such statements must bestatement was made renders it(A) and (B) above, (C) the
://wikimade prior to pleading.reliable and possessing sufficientinterrogation methods used to
httpMil. R. Evid. 304.probative value” and “theobtain the statement do not
Interrogations conducted byinterests of justice would best beamount to cruel, inhuman, or
foreign officials do not requireserved” by admission of thedegrading treatment. R.M.C.
warnings or presence of counselstatement. Statements taken after304(c).

unless the interrogation ispassage of the DTA are
instigated or conducted by U.S.admissible if the military judge
military personnel.also finds that “the interrogation
Mil. R. Evid. 305. methods used to obtain the
statement do not violate the cruel,
unusual, or inhumane treatment or
punishment prohibited by the
Fifth, Eighth, and Fourteenth
Amendments to the U.S.
Constitution.” 10 U.S.C. § 948r.

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
rom“Evidence obtained as a result ofNot provided; no exclusionaryNot provided. Evidence isNot provided. Evidence is
reasonablean unlawful search or seizure ... isrule appears to be available. generally permitted if it hasprobative if “a reasonable person
inadmissible against the accusedprobative value to a reasonablewould regard the evidence as
ures...” unless certain exceptionsHowever, monitoredperson. 10 U.S.C. § 949a.making the existence of any fact
apply. Mil. R. Evid. 311.conversations between thethat is of consequence to a
detainee and defense counsel mayProcedural rules may provide thatdetermination of the commission
“Authorization to search” may benot be communicated to personsevidence gathered withoutaction more probable or less
oral or written, and may be issuedinvolved in prosecuting theauthorization or a search warrantprobable than it would be without
by a military judge or an officeraccused or used at trial. M.C.O.may be admitted into evidence. 10the evidence.” Mil. Comm. R.
in command of the area to beNo. 3.U.S.C. § 949a.Evid. 401. Such evidence is
searched, or if the area is notgenerally admissible unless its
iki/CRS-RL33688under military control, with No provisions for determiningprobative value is outweighed by
g/wauthority over persons subject toprobable cause or issuance ofthe danger of unfair prejudice,
s.ormilitary law or the law of war. Itsearch warrants are included. confusion of the issues, or
leakmust be based on probable cause. misleading the commission; or
Mil. R. Evid. 315.Insofar as searches and seizuresby considerations of undue delay,
://wikitake place outside of the Unitedwaste of time, or needless
httpInterception of wire and oralStates against non-U.S. persons,presentation of cumulative
communications within thethe Fourth Amendment may notevidence. Mil. Comm. R. Evid.
United States requires judicialapply. United States v. Verdugo-402 - 403.
application in accordance with 18Urquidez, 494 U.S. 259 (1990).
U.S.C. §§ 2516 et seq.There is no prohibition against
Mil. R. Evid. 317.using evidence gathered without

A search conducted by foreign
officials is unlawful only if the
accused is subject to “gross and
brutal treatment.” Mil. R. Evid.


General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
fectiveThe defendant has a right toM.C.O. 1 provides that theAt least one qualifying militaryOrdinarily, only persons certified
military counsel at governmentaccused must be represented “atdefense counsel is to be detailedunder the UCMJ as competent to
expense. The defendant mayall relevant times” (presumably,“as soon as practicable after theperform duties in courts-martial
choose counsel, if that attorney isonce charges are approved untilswearing of charges….” 10may be assigned duties as
reasonably available, and mayfindings are final — but not forU.S.C. § 948k.defense counsel. Civilian
hire a civilian attorney in additionindividuals who are detained butcounsel must meet MCA
to military counsel. Art 38,not charged) by detailed defenseThe accused may also hire aqualifications. R.M.C. 502(d).
UCMJ, 10 U.S.C. § 838.counsel. civilian attorney who is
§ 4(C)(4). 1. a U.S. citizen, The accused may hire civilian
Appointed counsel must be2. admitted to the bar in any state,counsel at no expense to the
certified as qualified and may notThe accused is assigned a militarydistrict, or possession, government. R.M.C. 506(a).
iki/CRS-RL33688be someone who has taken anyjudge advocate to serve as3. has never been disciplined,
g/wpart in the investigation orcounsel, but may request to4. has a SECRET clearance (orIf civilian counsel is hired,
s.orprosecution, unless explicitlyreplace or augment the detailedhigher, if necessary for adetailed military counsel serves
leakrequested by the defendant. counsel with a specific officer, ifparticular case), andas associate counsel unless
Art. 27, UCMJ, 10 U.S.C. § 827.that person is available. 5. agrees to comply with allexcused by the military judge.
://wiki§ 4(C)(3)(a). applicable rules. R.M.C. 502(d)(2).
httpIn espionage cases or other cases10 U.S.C. § 949c(b)(3).
in which classified informationThe accused may also hire aThe authority competent to detail
may be necessary to prove acivilian attorney who is a U.S.If civilian counsel is hired, thedefense counsel may excuse or
charge or defense, the defense iscitizen, is admitted to the bar indetailed military counsel serves aschange such counsel, once an
permitted to request theany state, district, or possession,associate counsel. attorney client relationship has
information and to have thehas a SECRET clearance (or10 U.S.C. § 949c(b)(5). been formed, only upon the
military judge review in camerahigher, if necessary for arequest of the accused or counsel.
information for which theparticular case), and agrees toNo attorney-client privilege isR.M.C. 505(d)(2).
government asserts a privilege. comply with all applicable rules. mentioned.
The accused and the defenseThe civilian attorney does notThere is a lawyer-client privilege
attorney are entitle to be presentreplace the detailed counsel, andAdverse personnel actions maywith respect to confidential
for such in camera hearings, andis not guaranteed access tonot be taken against defensematters pertaining to the legal
although the government is notclassified evidence or closedattorneys because of the zeal withrepresentation unless the
generally required to give themhearings. § 4(C)(3)(b).which such officer, in acting ascommunication involves the

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
access to the classifiedDefense Counsel may presentcounsel, represented any accusedfuture commission of a crime or
information itself, the militaryevidence at trial and cross-before a military commission.…” fraud. Mil. Comm. R. Evid. 502.
judge may disapprove of anyexamine witnesses for the10 U.S.C. § 949b.
summary the governmentprosecution. § 5(I).No person may attempt to coerce
provides for the purpose of There is a right to self-or, by any unauthorized means,
permitting the defense to prepareThe Appointing Authority mustrepresentation, provided theinfluence the exercise of
adequately for the hearing, andorder such resources be providedaccused conforms to rules andprofessional judgment by defense
may subject the government toto the defense as he deemsproper decorum. counsel. Defense counsel may
sanctions if it declines to makenecessary for a full and fair trial.”10 U.S.C. § 949a.not receive unfavorable ratings in
the necessary information§ 5(H).performance evaluations due to
available. the zeal with which they
iki/CRS-RL33688Mil. R. Evid. 505.Communications between defenserepresent their clients. R.M.C.
g/wcounsel and the accused are104.
s.orThe military judge may order allsubject to monitoring by the
leakpersons requiring securitygovernment. AlthoughThe accused may elect to conduct
clearances to cooperate withinformation obtained throughthe defense personally, but a
://wikiinvestigatory personnel in anysuch monitoring may not be usedwaiver of the right to counsel
httpinvestigations which areas evidence against the accused,must be accepted by the military
necessary to obtain the securityM.C.I. No. 3, the monitoringjudge only upon finding that the
clearance necessary to participatecould arguably have a chillingaccused is competent to
in the proceedings.effect on attorney-clientunderstand the disadvantages of
Mil. R. Evid. 505(g).conversations, possiblyself-representation and that the
hampering the ability of defensewaiver is voluntary and
The attorney-client privilege iscounsel to provide effectiveunderstanding. The military
honored. representation. judge may require that a defense
Mil. R. Evid. 502.counsel remain as stand-by
counsel. The right of self-
representation may be revoked if
the accused is disruptive or fails
to follow basic rules of decorum
and procedure. R.M.C. 506.

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
ght toThe right to indictment by grandProbably not applicable toArticle 32, UCMJ, hearings areUpon the swearing of the charges
ctment andjury is explicitly excluded inmilitary commissions, providedexpressly made inapplicable. 10and specifications, the accused is
“cases arising in the land or navalthe accused is an enemyU.S.C. § 948b(d)(1)(C).to be informed of the charges
forces.”belligerent. against him as soon as
Amendment V.See Ex parte Quirin, 317 U.S. 1Charges and specifications againstpracticable in English and, if
(1942).an accused are to be signed by aappropriate,
However, a process similar to aperson subject to UCMJ swearingin another language that the
grand jury is required by articleThe Office of the Chiefunder oath that the signer hasaccused understands. R.M.C.

32, UCMJ. 10 U.S.C. § 832.Prosecutor prepares charges for“personal knowledge of, or reason308.

referral by the Appointingto believe, the matters set forth
Whenever an offense is alleged,Authority. therein,” and that they are “true inCharges must be sworn under
iki/CRS-RL33688the commander is responsible for§ 4(B).fact to the best of his knowledgeoath by a person subject to the
g/winitiating a preliminary inquiryand belief.” The accused is to beUCMJ with personal knowledge
s.orand deciding how to dispose ofThere is no requirement for aninformed of the charges andor reason to believe they are true.
leakthe offense.impartial investigation prior to aspecifications against him as soonR.M.C. 307(b).
R.C.M. 303-06.referral of charges. Theas practicable after charges are
://wikiThe accused must be informed ofCommission may adjust asworn. 10 U.S.C. § 948q.A specification is “a plain,
httpthe charges as soon as practicable.charged offense in a manner thatconcise, and definite statement of
Art. 30, UCMJ, 10 U.S.C. § 830.does not change the nature orthe essential facts constituting the
increase the seriousness of theoffense charged. A specification
charge. § 6(F).is sufficient if it alleges every
element of the charged offense
expressly or by necessary
implication.” R.M.C. 307.

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
ght toCharges and specifications mustCopies of approved charges areTrial counsel is responsible forThe trial counsel assigned to a
be signed under oath and madeprovided to the accused andserving on counsel a copy of thecase must cause to be served
known to the accused as soon asDefense Counsel in English andcharges upon the accused, inupon the accused and military
practicable. Art. 30, UCMJ, 10another language the accusedEnglish and, if appropriate, indefense counsel a copy of the
U.S.C. § 830.understands, if appropriate. another language that the accusedcharges, in English and, if
§ 5(A). understands, “sufficiently inappropriate, in another language
advance of trial to prepare athat the accused understands,
defense.” 10 U.S.C. § 948s.sufficiently in advance of trial to
prepare a defense. R.M.C. 602.
ght to beThe presence of the accused isThe accused may be present atThe accused has the right to beThe accused is required to be
rial required during arraignment, atevery stage of trial before thepresent at all sessions of thepresent at the arraignment, the
iki/CRS-RL33688the plea, and at every stage of theCommission unless the Presidingmilitary commission excepttime of the plea, every stage of
g/wcourt-martial unless the accusedOfficer excludes the accuseddeliberation or voting, unlessthe trial including sessions
s.orwaives the right by voluntarilybecause of disruptive conduct orexclusion of the accused isconducted without members
leakabsenting him or herself from thefor security reasons, or “any otherpermitted under § 949d. 10 U.S.C.(except for certain in camera and
proceedings after the arraignmentreason necessary for the conduct§ 949a(b)(1)(B).ex parte presentations as may be
://wikior by persisting in conduct thatof a full and fair trial.” permitted under R.M.C. 701-703
httpjustifies the trial judge in ordering§§ 4(A)(5)(a); 5(K); 6B(3).The accused may be excludedand Mil. Comm. R. Evid. 505),
the removal of the accused fromfrom attending portions of thevoir dire and challenges of
the proceedings.proceeding if the military judgemembers, the announcement of
R.C.M. 801.determines that the accusedfindings, sentencing proceedings,
persists in disruptive or dangerousand post-trial sessions, if any,
The government may introduceconduct. 10 U.S.C. § 949d(e).unless voluntary absence is
redacted or summarized versionspermitted by the rules or the
of evidence to be substituted foraccused is excluded by the
classified information properlymilitary judge, after warning, for
claimed under privilege, but theredisruptive conduct. R.M.C. 804.

is no provision that would allow
court-martial members (other
than the non-voting military
judge) to view evidence that is

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
not seen by the accused. Mil. R.
Evid. 505.
ibitionCourts-martial will not enforce anNot provided, but may be implicitCrimes punishable by militaryCrimes and their elements are set
Postex post facto law, includingin restrictions on jurisdiction overcommissions under the newforth in Part IV of the M.M.C.
cto Crimes increasing amount of pay to beoffenses. See § 3(B). chapter are contained in
forfeited for specific crimes.subchapter VII. It includes theMilitary commissions have
United States v. Gorki, 47 M.J.M.C.I. No. 2 § 3(A) provides thatcrime of conspiracy, which ajurisdiction to try any offense
370 (1997).“no offense is cognizable in a trialplurality of the Supreme Court inmade punishable by the MCA or
by military commission if thatHamdan v. Rumsfeld viewed asthe law of war when committed
offense did not exist prior to theinvalid as a charge of war an alien unlawful enemy
conduct in question.”126 S.Ct. 2749 (2006).combatant before, on, or after
iki/CRS-RL33688September 11, 2001. R.M.C.
g/wThe act declares that it “codif[ies]201(b)(1).

s.oroffenses that have traditionally
leakbeen triable by military
commissions,” and that “because
://wikithe [defined crimes] (including
httpprovisions that incorporate
definitions in other provisions of
law) are declarative of existing
law, they do not preclude trial for
crimes that occurred before the
date of enactment.” 10 U.S.C. §


The MCA expressly provides
jurisdiction over the defined
crimes, whether committed prior
to, on or after September 11,

2001. 10 U.S.C. § 948d.

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
otectionDouble jeopardy clause applies. The accused may not be tried“No person may, without hisThe accused may move to
See Wade v. Hunter, 336 US 684,again by any Commission for aconsent, be tried by a commissiondismiss charges on the basis that
688-89 (1949). charge once a Commission’sa second time for the samehe has previously been tried by
Art. 44, UCMJ prohibits doublefinding becomes final. (Jeopardyoffense.” Jeopardy attaches whenmilitary commission or federal
jeopardy, provides for jeopardy toappears to attach when the findinga guilty finding becomes finalcivilian court for the same
attach after introduction ofbecomes final, at least withafter review of the case has beenoffense. Jeopardy attaches once
evidence.respect to subsequent U.S.fully completed. 10 U.S.C. §presentation of evidence on the

10 U.S.C. § 844.military commissions.)949h.general issue of guilt has begun,

§ 5(P). except that a military
General court-martial proceedingThe United States may not appealcommission proceeding is not a
is considered to be a federal trialHowever, although a finding ofa an order or ruling that amountstrial for jeopardy purposes if the
iki/CRS-RL33688for double jeopardy purposes. Not Guilty by the Commissionto a finding of not guilty. 10military commission lacked
g/wDouble jeopardy does not resultmay not be changed to Guilty,U.S.C. § 950d(a)(2).jurisdiction, or, if a military
s.orfrom charges brought in state oreither the reviewing panel, thecommission makes a finding of
leakforeign courts, although court-Appointing Authority, theThe convening authority may notguilty, the proceeding is not a
martial in such cases isSecretary of Defense, or therevise findings or order atrial for jeopardy purposes until
://wikidisfavored.President may return the case forrehearing in any case to reconsiderfinal review has been fully
httpU. S. v. Stokes, 12 M.J. 229“further proceedings” prior to thea finding of not guilty of anycompleted. R.M.C. 907.
(C.M.A. 1982).findings’ becoming final. If aspecification or a ruling which
finding of Not Guilty is vacatedamounts to a finding of not guilty,The convening authority may not
Once military authorities haveand retried, double jeopardy mayor reconsider a finding of notorder new proceedings to
turned service member over tobe implicated. guilty of any charge, unless therereconsider any ruling that
civil authorities for trial, militaryThe order does not specifyhas been a finding of guilty underamounts to a finding of not guilty
may have waived jurisdiction forwhether a person already tried bya specification laid under thatas to any charge or specification,
that crime, although it may beany other court or tribunal may becharge, which sufficiently allegesexcept with respect to a charge
possible to charge the individualtried by a military commissiona violation. The conveningwhere the record indicates guilt
for another crime arising from theunder the M.O. The M.O.authority may not increase theas to a specification that may be
same conduct. reserves for the President theseverity of the sentence unless thecharged as a separate offense
See 54 AM. JUR. 2D, Military andauthority to direct the Secretarysentence prescribed for theunder the MCA. Proceedings for
Civil Defense §§ 227-28.of Defense to transfer anoffense is mandatory.increasing the severity of a
individual subject to the M.O. to10 U.S.C. § 950b(d)(2)(B).sentence are not permitted unless

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
another governmental authority,the commission failed to adjudge
which is not precluded by thea proper sentence under the MCA
order from prosecuting theor the sentence was less than that
individual. This subsection couldagreed to in a plea agreement.
be read to authorize prosecutionR.M.C. 1102(c).
by federal authorities after the
individual was subject to trial by
military commission, although a
federal court would likely dismiss
such a case on double jeopardy
iki/CRS-RL33688M.O. § 7(e).
g/wIn general, accused must beThe Commission is required toThere is no right to a speedy trial. There is a right to a speedy trial,
s.orblic Trial brought to trial within 120 days ofproceed expeditiously,Article 10, UCMJ, 10 U.S.C. §but only after charges are
leakthe preferral of charges or the“preventing any unnecessary810, is expressly madepreferred. The accused is to be
imposition of restraint, whicheverinterference or delay.” inapplicable to militaryarraigned within 30 days of the
://wikidate is earliest.§ 6(B)(2). commissions. 10 U.S.C. §service of charges. The military
httpR.C.M. 707(a).948b(c).judge is to set an appropriate
The right to a public trial appliesFailure to meet a specifiedschedule for discovery as soon as
in courts-martial but is notdeadline does not create a right toThe military judge may close allpracticable after the service of
absolute. relief. § 10.or part of a trial to the public onlycharges, and to announce the
R.C.M. 806.after making a determination thatassembly of the military
The military trial judge mayThe rules do not prohibitsuch closure is necessary tocommission within 120 days of
exclude the public from portionsdetention without charge, orprotect information, the disclosurethe service of charges.
of a proceeding for the purpose ofrequire charges to be broughtof which would be harmful toContinuances are to be granted
protecting classified informationwithin a specific time period.national security interests, or toonly in the interests of justice,
if the prosecution demonstrates anProceedings “should be open toprotect the physical safety of anyand remedies, such as dismissal
overriding need to do so and thethe maximum extent possible,”participant. of charges (with or without
closure is no broader thanbut the Appointing Authority has10 U.S.C. § 949d(d).prejudice) may be available.
necessary.broad discretion to close hearings,R.M.C. 707.

United States v. Grunden, 2 M.J.and may exclude the public or

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
116 (CMA 1977); Mil. R. Evid.accredited press from openThe military judge may close a
505(j).proceedings. session to the public only after
§ 6(B)(3).specifically finding such closure
necessary to protect national
security information or to ensure
the physical safety of individuals.
“Public” includes representatives
of the press and representatives
of national and international
organizations, as determined by
the Office of the Secretary of
iki/CRS-RL33688Defense, and certain members of
g/wboth the military and civilian
s.orcommunities. R.M.C. 806.
leakrden &Members of court martial must beCommission members may voteCommission members are to beInstructions to the members
instructed that the burden of prooffor a finding of guilty only ifinstructed that the accused isinclude a charge that the accused
://wikioofto establish guilt is upon theconvinced beyond a reasonablepresumed to be innocent until hismust be presumed to be innocent
httpgovernment and that anydoubt, based on evidence“guilt is established by legal anduntil the accused’s guilt is
reasonable doubt must beadmitted at trial, that the accusedcompetent evidence beyondestablished by legal and
resolved in favor of theis guilty.reasonable doubt”; that anycompetent evidence beyond
defendant. §§ 5(C); 6(F).reasonable doubt as to the guilt ofreasonable doubt; any reasonable
R.C.M. 920(e).the accused must be “resolved indoubt must be resolved in favor
The burden of proof of guilt is onfavor of the accused and he mustof the accused, and the burden of
the prosecution, § 5(C); however,be acquitted”; that reasonableproof to establish the guilt of the
M.C.I. No. 2 states that elementdoubt as to the degree of guilt accused is upon the Government.
of wrongfulness of an offense ismust be resolved in favor of theR.M.C. 920(e).
to be inferred absent evidence tolower degree as to which there is
the contrary. M.C.I. No. 2 § 4(B).no reasonable doubt; and that theA finding of guilty requires the
burden of proof is upon the Unitedvotes of two-thirds of the
States. 10 U.S.C. § 949l. members present except in
capital cases, in which case the

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
Two-thirds of the members mustvote must be unanimous. R.M.C.
concur on a finding of guilty,921(c).
except in capital cases. 10 U.S.C.
§ 949m.
The military judge is to exclude
any evidence the probative value
of which is substantially
outweighed by the danger of
unfair prejudice, confusion of the
issues, or misleading the members
iki/CRS-RL33688of the commission, or by
g/wconsiderations of undue delay,
s.orwaste of time, or needless
leakpresentation of cumulative
://wiki10 U.S.C. § 949a.
httpNo person subject to the UCMJThe accused is not required to“No person shall be required toNo person shall be required to
-may compel any person to answertestify, and the commission maytestify against himself at atestify against himself at a
crimination incriminating questions. Art.draw no adverse inference from, acommission proceeding.” proceeding of a military

31(a) UCMJ, 10 U.S.C. § 831(a). refusal to testify. 10 U.S.C. § 948r.commission. R.M.C. 301(a).

§ 5(F).
Defendant may not be compelledAdverse inferences drawn from aTestimony can be compelled only
to give testimony that isHowever, there is no rule againstfailure to testify are not expresslyif the facts and circumstances are
immaterial or potentiallythe use of coerced statements asprohibited; however, members aresuch that no answer the witness
degrading. be instructed that “the accusedmight make to the question could
Art. 31(c), UCMJ, 10 U.S.C. §must be presumed to be innocentincriminate the witness, the

831(c).There is no specific provision foruntil his guilt is established bywitness has waived the privilege,

immunity of witnesses to preventlegal and competent evidence” 10or the privilege against
No adverse inference is to betheir testimony from being usedU.S.C. § 949l.self-incrimination does not apply.
drawn from a defendant’s refusalagainst them in any subsequentA witness may not assert the

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
to answer any questions or testifylegal proceeding; however, underThere does not appear to be aprivilege if the witness is not
at court-martial. Mil. R. Evid.18 U.S.C. §§ 6001 et seq., aprovision for immunity ofsubject to criminal penalty as a
301(f).witness required by a militarywitnesses.result of an answer by reason of
Witnesses may not be compelledtribunal to give incriminatingimmunity, running of a statute of
to give testimony that may betestimony is immune fromlimitations, or similar reason.
incriminating unless grantedprosecution in any criminal case,Mil. Comm. R. Evid. 301.
immunity for that testimony by aother than for perjury, giving
general court-martial conveningfalse statements, or otherwiseIn the event a witness is granted
authority, as authorized by thefailing to comply with the order. immunity, the military judge
Attorney General, if required. 1818 U.S.C. §§6002; 6004.must ensure that the immunity is
U.S.C. § 6002; R.C.M. 704.granted by an appropriate
iki/CRS-RL33688authority and that the grant
g/wprovides that neither the
s.ortestimony of the witness nor any
leakevidence obtained from that
testimony may be used against
://wikithe witness at any subsequent
httptrial other than in a prosecution
for perjury, false swearing, the
making of a false official
statement, or failure to comply
with an order to testify after the
military judge has ruled that the
privilege may not be asserted by
reason of immunity. R.M.C. 301.

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
ght toHearsay rules apply as in federalDefense Counsel may cross-“Defense counsel may cross-The accused has the right to be
amine orcourt. examine the prosecution’sexamine each witness for therepresented by counsel at oral
Mil. R. Evid. 801 et seq. witnesses who appear before theprosecution who testifies beforedepositions to examine and cross-
aminedIn capital cases, swornCommission. § 5(I).the commission.” examine witnesses. R.M.C.
versedepositions may not be used in 10 U.S.C. § 949c.702(g).
lieu of witness, unless court-However, the Commission may
martial is treated as non-capital oralso permit witnesses to testify byIn the case of classified“Hearsay may be admitted on the
it is introduced by the defense.telephone or other means notinformation, the military judgesame terms as any other form of
Art. 49, UCMJ, 10 U.S.C. § 849.requiring the presence of themay authorize the government toevidence ... if it would be
The government may claim awitness at trial, in which casedelete specified portions ofadmitted under the rules of
privilege not to disclose classifiedcross-examination may beevidence to be made available toevidence applicable in trial by
evidence to the accused, and theimpossible.the accused, or may allow angeneral courts-martial,” or “if the
iki/CRS-RL33688military judge may authorize the§ 6(D)(2). unclassified summary or statementproponent of the evidence makes
g/wdeletion of specified items ofsetting forth the facts the evidenceknown to the adverse party” the
s.orclassified information, substituteIn the case of closed proceedingswould tend to prove, to the extentintention to offer, and the
leaka portion or summary, oror classified evidence, only thepracticable in accordance with theparticulars of, the evidence. The
://wikistatement admitting relevant factsthat the evidence would tend todetailed defense counsel may bepermitted to participate. Hearsayrules used at general courts-martial. 10 U.S.C.accused may have such evidenceexcluded if he can demonstrate
httpprove, unless the military judgeevidence is admissible as long as§ 949d(f)(2)(A).that the evidence is unreliable.
determines that disclosure ofthe Commission determines itMil. Comm. R. Evid. 802, 803.
classified information itself iswould have probative value to aHearsay evidence not admissible
necessary to enable the accused toreasonable person. § 6(D)(1).under the rules of evidenceThe military judge may, with
prepare for trial. applicable in trial by generalrespect to classified information,
Mil. R. Evid. 505(g).The Commission may considercourts-martial is admissible only order admission into evidence of
testimony from prior trials as wellif the proponent notifies theonly part of a writing, recording
as sworn and unsworn writtenadverse party, sufficiently inor photograph or may order
statements, apparently withoutadvance of its intention to offeradmission into evidence of the
regard to the availability of thethe evidence, and the particularswhole, writing, recording or
declarant, in apparentof the evidence (includingphotograph with the excision of
contradiction with 10 U.S.C.information on the generalsome or all of the classified
§ 849.circumstances under which theinformation contained therein.
§ 6(D)(3).evidence was obtained) unless theMil. Comm. R. Evid. 505(f)(3).

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
party opposing the admission ofThe military judge is required to
the evidence “clearlypermit trial counsel to introduce
demonstrates that the evidence isotherwise admissible evidence
unreliable or lacking in probativebefore the military commission
value.” without disclosing the “sources,
10 U.S.C. § 949a(b)(2)(E).methods, or activities by which
the United States acquired the
evidence” if the military judge
finds that such information is
classified and that the evidence is
reliable. The military judge may
(but need not) require trial
iki/CRS-RL33688counsel to present an unclassified
g/wsummary of such information to
s.orthe military commission and the
leakdefense, “to the extent
://wikipracticable and consistent withnational security.” Mil. Comm.
httpR. Evid. 505(e)(6).
ght toDefendants before court-martialThe accused may obtainDefense counsel is to be affordedSubject to 10 U.S.C. § 949j(c)
pulsoryhave the right to compelwitnesses and documents “to thea reasonable opportunity to obtainand R.M.C. 701, each party is
ocess toappearance of witnessesextent necessary and reasonablywitnesses and other evidence,entitled to the production
tainnecessary to their defense. available as determined by theincluding evidence in theof evidence which is relevant,
R.C.M. 703.Presiding Officer.” possession of the United States,necessary and noncumulative.
§ 5(H). according to DOD regulations.R.M.C. 703(f)
Process to compel witnesses inThe military commission is
court-martial cases is to beThe Commission has the power toauthorized to compel witnessesThe defense is to have a
similar to the process used insummon witnesses as requestedunder U.S. jurisdiction to appear. “reasonable opportunity to obtain
federal the defense. § 6(A)(5). The military judge may authorizewitnesses” who have not been
Art. 46, UCMJ, 10 U.S.C. § 846.discovery in accordance with rulesdeemed “unavailable” by the
The power to issue subpoenas isprescribed by the Secretary ofmilitary judge according to Mil.
exercised by the ChiefDefense to redact classifiedComm. R. Evid. 804(a).

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
Prosecutor; the Chief Defenseinformation or to provide anEvidence under the control of the
Counsel has no such authority. unclassified summary or statementGovernment may be obtained by
M.C.I. Nos. 3-4.describing the evidence. The trialrequesting it from the custodian.
counsel is obligated to discloseOther evidence may be obtained
exculpatory evidence of which heby subpoena. R.M.C. 703.
is aware to the defense, but such
information, if classified, isThe defense may submit a
available to the accused only in awritten request listing witnesses
redacted or summary form, andfor production by the
only if making the informationGovernment The judge is
available is possible withoutauthorized to grant the
compromising intelligenceproduction of the witnesses as
iki/CRS-RL33688sources, methods, or activities, orjustice may require. R.M.C.
g/wother national security interests.703(c).
s.or10 U.S.C. § 949j.
leakght to TrialA qualified military judge isThe Presiding Officer isMilitary judges must take an oathMilitary judges must take an oath
://wikipartialdetailed to preside over the court-appointed directly by theto perform their duties faithfully. to “faithfully and impartially”
httpmartial. The convening authorityAppointing Authority, which10 U.S.C. § 949g.perform their duties. R.M.C.
may not prepare or review anydecides all interlocutory issues. 807(b).
report concerning theThere do not appear to be anyThe convening authority is
performance or effectiveness ofspecial procedural safeguards toprohibited from preparing orA military judge may not be
the military judge.ensure impartiality, butreviewing any report concerningassigned to a case “if he is the
Art. 26, UCMJ, 10 U.S.C. § 826.challenges for cause have beenthe effectiveness, fitness, oraccuser or a witness or has acted
permitted.efficiency of a military judge. 10as investigator or a counsel in the
Article 37, UCMJ, prohibits§ 4(A)(4).U.S.C. § 948j(a).same case.” R.M.C. 502(c)(1).
unlawful influence of courts-
martial through admonishment,The presiding judge, who decidesA military judge may not beRecusal is required in any
censure, or reprimand of itsissues of admissibility ofassigned to a case in which he isproceeding in which a military
members by the conveningevidence, does not vote as part ofthe accuser, an investigator, ajudge’s impartiality might
authority or commanding officer,the commission on the finding ofwitness, or a counsel. reasonably be questioned.
or any unlawful attempt by aguilt or innocence.10 U.S.C. § 948j(c).R.M.C. 902(a).

person subject to the UCMJ toArticle 37, UCMJ, provides that

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
coerce or influence the action of ano person subject to the UCMJThe military judge may not“A military judge ... may not
court-martial or convening“may attempt to coerce or, by anyconsult with the members of theconsult with the members of the
authority.unauthorized means, influence thecommission except in thecommission except in the
Art. 37, UCMJ, 10 U.S.C. § 837. action of a court-martial or anypresence of the accused, trialpresence of the accused, trial
other military tribunal or anycounsel, and defense counsel, norcounsel, and defense counsel, nor
member thereof, in reaching themay he vote with the members ofmay he vote with the members of
findings or sentence in any case,the commission.the commission.” R.M.C.
or the action of any convening,10 U.S.C. § 948j(d).502(c)(2).
approving, or reviewing authority
with respect to his judicial acts.”Convening authority may notThe convening authority is
10 U.S.C. § 837.censure, reprimand, or admonishprohibited from preparing or
the military judge. reviewing “any report concerning
iki/CRS-RL33688M.C.I. No. 9 clarifies that Art. 37the effectiveness, fitness, or
g/wapplies with respect to membersNo person may attempt to coerceefficiency of a military judge ...
s.orof the review panel. M.C.I. No. 9or use unauthorized means towhich relates to his performance
leak§ 4(F).influence the action of aof duty as a military judge on the
://wikicommission.10 U.S.C. § 949b.military commission.” R.M.C.502(c)(4).
The military judge may beThe convening authority may not
challenged for cause. censure, reprimand, or admonish

10 U.S.C. § 949f.the military judge. R.M.C.


“No person may attempt to
coerce or, by any unauthorized
means, influence the action of a
military commission ....” R.M.C.


General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
ght to TrialA military accused has no SixthThe commission members areMilitary commission membersMilitary commission members
ImpartialAmendment right to a trial byappointed directly by themust take an oath to perform theirmust take an oath to “faithfully
petit jury.Appointing Authority. While theduties faithfully. and impartially” perform their
Ex Parte Quirin, 317 U.S. 1, 39-Commission is bound to proceed10 U.S.C. § 949g.duties. R.M.C. 807(b).
40 (1942) (dicta).impartially, there do not appear to
be any special proceduralThe accused may make one“Members should avoid any
However, “Congress has providedsafeguards designed to ensureperemptory challenge, and mayconduct or communication with
for trial by members at a court-their impartiality. However,challenge other members forthe military judge, witnesses, or
martial.” defendants have successfullycause. 10 U.S.C. § 949f.other trial personnel during the
United States v. Witham, 47 MJchallenged members for cause. trial which might present an
297, 301 (1997); Art. 25, UCMJ,§ 6(B).No convening authority mayappearance of partiality. Except

10 U.S.C. § 825.censure, reprimand, or admonishas provided in [the R.M.C.],

iki/CRS-RL33688The Sixth Amendmentthe commission or any membermembers should not discuss any
g/wrequirement that the jury bewith respect to the findings orpart of a case with anyone until
s.orimpartial applies to court-martialsentence or the exercise of anythe matter is submitted to them
leakmembers and covers not only theother functions in the conduct offor determination. Members
://wikiselection of individual jurors, butalso their conduct during the trialthe proceedings. should not on their own visit orconduct a view of the scene of
httpproceedings and the subsequentNo person may attempt to coercethe crime and should not
deliberations.or, by any unauthorized means,investigate or gather evidence of
United States v. Lambert, 55 M.J.influence the action of athe offense. Members should not
293 (2001).commission or any memberform an opinion of any matter in
The absence of a right to trial bythereof, in reaching the findings orconnection with the case until
jury precludes criminal trial ofsentence in any case. that matter has been submitted to
civilians by court-martial.them for determination.” R.M.C.
Reid v. Covert, 354 U.S. 1Military commission duties may502(a).
(1957); Kinsella v. United Statesnot be considered in the
ex rel. Singleton, 361 U.S. 234preparation of an effectivenessThe accused may challenge one
(1960).report or any similar documentmember peremptorily, and may
with potential impact on career-challenge other members for
advancement. cause. R.M.C. 912(g).

10 U.S.C. § 949b.

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
Convening authority may not
censure, reprimand, or admonish
the military commission, or any
member with respect to the
findings or sentence or any other
exercise of its or his function in
the conduct or the proceedings.
R.M.C. 104(a)(1).
“No person may attempt to
coerce or, by any unauthorized
means, influence the action of a
iki/CRS-RL33688military commission ....” R.M.C.
g/w 104(a)(2).
s.orght toThose convicted by court-martialA review panel appointed by theThe accused may submit mattersPrior to taking action, the
leak tohave an automatic appeal to theirSecretary of Defense reviews thefor consideration by the conveningconvening authority must
://wikirespective service courts ofrecord of the trial in a closedauthority with respect to theconsider timely written
httpingappeal, depending on the severityconference, disregarding anyauthenticated findings or sentencesubmissions by the accused
of the punishment.procedural variances that wouldof the military commission. Theconcerning “(1) Allegations of
Art. 66, UCMJ; 10 U.S.C. § 866.not materially affect the outcomeconvening authority must reviewerrors affecting the legality of the
of the trial, and recommends itstimely submissions prior to takingfindings or sentence; (2) Portions
Decisions by service appellatedisposition to the Secretary ofaction. 10 U.S.C. § 950b.or summaries of the record and
courts are reviewable on aDefense. Although the Defensecopies of documentary evidence
discretionary basis by the CourtCounsel has the duty ofThe accused may appeal a finaloffered or introduced at trial; (3)
of Appeals for the Armed Forcesrepresenting the interests of thedecision of the militaryMatters in mitigation which were
(CAAF), a civilian courtaccused during any reviewcommission with respect to issuesnot available for consideration at
composed of five civilian judgesprocess, the review panel needof law to the Court of Militarythe military commission; and (4)
appointed by the President.not consider written submissionsCommission Review, a new bodyClemency recommendations by
Art. 67, UCMJ; 10 U.S.C. § 867.from the defense, nor does therecomprised of appellate militaryany member, the military judge,
CAAF decisions are subject toappear to be an opportunity tojudges who meet the sameor any other person.” R.M.C.
Supreme Court review by writ ofrebut the submissions of thequalifications as military judges or1105

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
certiorari.prosecution. If the majority ofcomparable qualifications forAfter any military commission in
28 U.S.C. § 1259.the review panel forms a “definitecivilian judges. which the approved sentence
and firm conviction that a10 U.S.C. § 950f.includes death, the accused may
The writ of habeas corpusmaterial error of law occurred,” itnot waive or withdraw appellate
provides the primary means bymay return the case to theOnce these appeals are exhausted,review. R.M.C. 1110.
which those sentenced by militaryAppointing Authority for furtherthe accused may appeal the final
court, having exhausted militaryproceedings. decision to the United StatesIn cases where appellate review
appeals, can challenge a§ 6(H)(4). Court of Appeals for the Districthas not been waived, the findings
conviction or sentence in aof Columbia Circuit. Appellateand sentence shall be reviewed
civilian court. The scope ofThe review panelcourt decisions may be reviewedby the Court of Military
matters that a court will address isrecommendation does not appearby the Supreme Court under writCommission Review for errors of
narrower than in challenges ofto be binding. The Secretary ofof certiorari. law. Relief may be granted if the
iki/CRS-RL33688federal or state convictions.Defense may serve as Appointing10 U.S.C. § 950g.“error of law prejudiced a
g/wBurns v. Wilson, 346 U.S. 137Authority and as the finalsubstantial trial right of the
s.or(1953).reviewing authority, as designatedaccused.” R.M.C. 1201(d).
leakby the President.
://wikiAlthough the M.O specifies thatThe accused may, within twentydays after notification of the
httpthe individual is not privileged todecision of the Court of Military
seek any remedy in any U.S.Commission Review, petition the
court or state court, the court ofUnited States Court of Appeals
any foreign nation, or anyfor the District of Columbia for a
international tribunal, M.O. §review of the case. R.M.C.

7(b), Congress established1205(a).

jurisdiction in the Court of
Appeals for the D.C. Circuit toDecisions of the D.C. Circuit
hear challenges to final decisionsmay be reviewed by the Supreme
of military commissions. Court by writ of certiorari.
Detainee Treatment Act of 2005.R.M.C. 1205(b).

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
otectionThe right to appeal a convictionThe accused is permitted to makeMilitary commissions maySubject to national security
resulting in a death sentence maya statement during sentencingadjudge “any punishment notprivilege, “the trial counsel shall,
cessivenot be waived.procedures. § 5(M). forbidden by [the MCA] or theas soon as practicable, disclose to
altiesR.C.M. of war, including the penaltythe defense the existence of
Death may only be adjudged forThe death sentence may beof death….” 10 U.S.C. § 948d.evidence known to the trial
certain crimes where theimposed only on the unanimouscounsel which reasonably tends
defendant is found guilty byvote of a seven-member panel. §A vote two-thirds of the membersto ... reduce the punishment.”
unanimous vote of court-martial6(F).present is required for sentencesR.M.C. 701(e).
members present at the time of of up to 10 years. Longer
the vote. Prior to arraignment,The commission may onlysentences require the concurrenceThe right to appeal a conviction
the trial counsel must give theimpose a sentence that isof three-fourths of the membersresulting in a death sentence may
defense written notice ofappropriate to the offense forpresent. The death penalty mustnot be waived nor withdrawn.
iki/CRS-RL33688aggravating factors thewhich there was a finding ofbe approved unanimously on aR.M.C. 1110.
g/wprosecution intends to prove.guilty, including death,unanimous guilty verdict. Where
s.orR.C.M. 1004.imprisonment, fine or restitution,the death penalty is sought, aThe convening authority may, if
leakA conviction of spying duringor “other such lawful punishmentpanel of 12 members is requiredthe accused is found guilty,
://wikitime of war under article 106,UCMJ, carries a mandatory deathor condition of punishment as thecommission shall determine to be(unless not “reasonablyavailable”). The death penaltyreduce the charge to a lesserincluded offense, order a
httppenalty.proper.” § 6(G).must be expressly authorized forrehearing, or set aside the finding

10 U.S.C. § 906. the offense, and the charges mustof guilt and dismiss the charge.

If the Secretary of Defense hashave expressly sought the penaltyR.M.C. 1107(c).
the authority to conduct the finalof death. 10 U.S.C. § 949m.
review of a conviction andA sentence of up to ten years
sentence, he may mitigate,An accused who is sentenced torequires a two-thirds vote of
commute, defer, or suspend, butdeath may not waive or withdrawmembers present. A sentence of
not increase, the sentence. his appeal to the Court of Militarymore than ten years requires a
However, he may disapprove theCommission Review. 10 U.S.C.three-fourths vote. A sentence
findings and return them for§ 950c.which includes death requires a
further action by the militaryunanimous vote. R.M.C.
commission.The death sentence may not be1006(d)(4).
§ 6(H).executed until the commission
proceedings have been finallyDeath sentences may not be

General Courts MartialMilitary Commission Order No. 1 (M.C.O.) Military Commissions Act of 2006Rules for MilitaryCommissions (R.M.C.)
adjudged lawful and the time forexecuted until approved by the
filing a writ has expired or thePresident. R.M.C. 1207(a).

writ has been denied; and the
President approves the sentence.

10 U.S.C. § 950i.