The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice
Released: 2006-09-25T00:00:00

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

subsections: section_title: Introduction
paragraphs: Rasul v. Bush , issued by the U.S. Supreme Court at the end of its 2003-2004 term, clarified that U.S. courts do have jurisdiction to hear petitions for habeas corpus on behalf of the approximately 550 persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism, establishing a role for federal courts to play in determining the validity of the military commissions convened pursuant to President Bush's Military Order (M.O.) of November 13, 2001. After dozens of petitions for habeas corpus were filed in the federal District Court for the District of Columbia, Congress passed the Detainee Treatment Act of 2005 (DTA), revoking federal court jurisdiction over habeas claims, at least with respect to those not already pending, and created jurisdiction in the Court of Appeals for the District of Columbia Circuit to hear appeals of final decisions of military commissions. The Supreme Court overturned a decision by the D.C. Circuit that had upheld the military commissions, Hamdan v. Rumsfeld , 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 Military Justice (UCMJ).
subsections: section_title: Military Commissions: General Background
paragraphs: Military commissions are courts usually set up by military commanders in the field to try persons accused of certain offenses during war. They are distinct from military courts-martial, which are panels set up to try U.S. service members (and during declared wars, civilians accompanying the armed forces) under procedures prescribed by Congress in the UCMJ. U.S. service members charged with a war crime are normally tried before courts-martial but may also be tried by military commission or in federal court, depending on the nature of the crime charged. All three options are also available to try certain other persons for war crimes. Federal and state criminal statutes and courts are available to prosecute specific criminal acts related to terrorism that may or may not be triable by military commission.
Military commissions trying enemy belligerents for war crimes directly apply the international law of war, without recourse to domestic criminal statutes, unless such statutes are declaratory of international law. Historically, military commissions have applied the same set of procedural rules that applied in courts-martial.
section_title: Military Commissions at Guantánamo Bay
paragraphs: The President's Military Order establishing military commissions to try suspected terrorists has been the focus of intense debate both at home and abroad. Critics argued that the tribunals could violate any rights the accused may have under the Constitution as well as their rights under international law, thereby undercutting the legitimacy of any verdicts rendered by the tribunals. The Administration initially responded that the M.O. provided only the minimum requirements for a full and fair trial, and that the Secretary of Defense intended to establish rules prescribing detailed procedural safeguards for tribunals established pursuant to the M.O. The procedural rules released in March 2002 were praised as a significant improvement over what might have been permitted under the language of the M.O., but some continued to argue that the enhancements do not go far enough and that the checks and balances of a separate rule-making authority and an independent appellate process are necessary. The release of the Military Commission Instructions sparked renewed debate, especially concerning the restrictions on civilian attorneys, resulting in further modifications to the rules. Critics noted that the rules do not address the issue of indefinite detention without charge, as appears to be possible under the original M.O., or that the Department of Defense may continue to detain persons who have been cleared by a military commission. The Pentagon has stated that its Inspector General (IG) looked into allegations, made by military lawyers assigned as prosecutors to the military commissions, that the proceedings are rigged to obtain convictions, but the IG did not substantiate the charges.
The Department of Defense (DOD) has released ten "Military Commission Instructions" ("M.C.I. No. 1-10") to elaborate on the set of procedural rules to govern military tribunals. Those rules are set forth in Military Commission Order No. 1 ("M.C.O. No. 1"), issued in March 2002 and amended in 2005. The instructions set forth the elements of some crimes that may be tried by military commission, establish guidelines for civilian attorneys, and provide other administrative guidance and procedures for military commissions. Additionally, Major General John D. Altenburg, Jr. (retired), the Appointing Authority for the commissions, issued several Appointing Authority Regulations, governing disclosure of communications, interlocutory motions, and professional responsibility.
In August 2005, DOD amended M.C.O. No. 1 to make the presiding officer function more like a judge and to have other panel members function more like a jury. Under the new rules, the presiding officer was assigned the responsibility of determining most questions of law while the other panel members were to make factual findings and decide any sentence, similar to courts-martial proceedings. Other provisions were modified to clarify the accused's privilege to be present except when necessary to protect classified information and only in instances where the presiding officer concludes that the admission of such evidence would not prejudice a fair trial and to require that the presiding officer exclude any evidence that would result in the denial of a full and fair trial from lack of access to the information.
President Bush determined that twenty of the detainees at the U.S. Naval Station in Guantánamo Bay are subject to the M.O. and may consequently be charged and tried before military commissions. Six detainees declared eligible in 2003 included two citizens of the U.K. and one Australian citizen. After holding discussions with the British and Australian governments regarding the trial of their citizens, the Administration agreed that none of those three detainees will be subject to the death penalty. The Administration agreed to modify some of the rules with respect to trials of Australian detainees and agreed to return the U.K. citizens, including the two who had been declared eligible for trial by military commission, to Great Britain. The Administration agreed to return one Australian citizen, but another, David Hicks has been charged with conspiracy to commit war crimes; attempted murder by an unprivileged belligerent and aiding the enemy. One citizen from Yemen and one from the Sudan were formally charged with conspiracy to commit certain violations of the law of war (and other crimes triable by military commission). Salim Ahmed Hamdan of Yemen, accused of providing physical security for Osama bin Laden and other high ranking Al Qaeda members and charged with conspiracy to attack civilians, commit murder by an unprivileged belligerent and terrorism, provided the Supreme Court its first opportunity to address the validity of the military commissions.
section_title: Hamdan v. Rumsfeld
paragraphs: Salim Ahmed Hamdan, who was captured in Afghanistan and is alleged to have worked for Osama Bin Laden as a body guard and driver, brought this challenge to the lawfulness of the Secretary of Defense's plan to try him for alleged war crimes before a military commission, arguing that the military commission rules and procedures were inconsistent with the UCMJ and that he had the right to be treated as a prisoner of war under the Geneva Conventions. U.S. District Judge Robertson agreed, finding no inherent authority in the President as Commander-in-Chief of the Armed Forces to create such tribunals outside of the existing statutory authority, with which the military commission rules did not comply. He also concluded that the Geneva Conventions apply to the whole of the conflict in Afghanistan, including under their protections all persons detained in connection with the hostilities there, and that Hamdan was thus entitled to be treated as a prisoner of war until his status was determined to be otherwise by a competent tribunal, in accordance with article 5 of the Third Geneva Convention (prisoners of war).
Interpreting the UCMJ in light of the Geneva Conventions, which permits the punishment of prisoners of war "only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power," Judge Robertson found no congressional authority for Hamdan's trial under the DOD's rules for military commissions. Hamdan, he ruled, was not "an offender triable by military tribunal under the law of war" within the meaning of UCMJ art 21. Further, he found the rules established by DOD to be fatally inconsistent with the UCMJ, contrary to UCMJ art. 36 because they give military authorities the power to exclude the accused from hearings and deny him access to evidence presented against him.
The government appealed, arguing that the district court should not have interfered in the military commission prior to its completion, that Hamdan is not entitled to protection from the Geneva Conventions, and that the President has inherent authority to establish military commissions, which need not conform to statutes regulating military courts-martial. The D.C. Circuit Court of Appeals rejected the government's argument that the federal courts had no jurisdiction to interfere in ongoing commission proceedings, but otherwise agreed with the government. Writing for a unanimous court, Judge Randolph reversed the lower court's finding, ruling that the Geneva Conventions are not judicially enforceable, that even if they were, Hamdan is not entitled to their protections, and that in any event, the military commission would qualify as a "competent tribunal" where Hamdan may challenge his non-POW status, within the meaning of U.S. Army regulations implementing the Conventions.
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), read together with UCMJ arts. 21 and 36. The court interpreted art. 36 to mean that military commission rules have only to be consistent with those articles of the UCMJ that refer specifically to military commissions, and not that Congress meant to incorporate procedural rules for courts-martial into those applicable to military commissions. However, because the procedural rules to be used by the military commissions did not, in its view, affect jurisdiction, the court found it unnecessary to resolve the issue at the interlocutory stage of the case.
With respect to the Geneva Conventions, the D.C. Circuit cited to a footnote from the World War II Eisentrager opinion that expresses doubt that the Court could grant relief based directly on the 1929 Geneva Convention:
We are not holding that these prisoners have no right which the military authorities are bound to respect. The United States, by the Geneva Convention of July 27, 1929, 47 Stat. 2021, concluded ... an agreement upon the treatment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is, however, the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.
Judge Williams wrote a concurring opinion, agreeing with the government's conception of the conflict with Al Qaeda as separate from the conflict with the Taliban but construing Common Article 3 to apply to any conflict with a non-state actor, without regard to the geographical confinement of such a conflict within the borders of a signatory state. Supreme Court nominee John G. Roberts concurred in the opinion without writing separately.
The Supreme Court granted review and reversed.
Before reaching the merits of the case, the Supreme Court dispensed with the government's argument that Congress had, by passing the Detainee Treatment Act of 2005 (DTA), stripped the Court of its jurisdiction to review habeas corpus challenges by or on behalf of Guantanamo detainees whose petitions had already been filed. The government's argument that the petitioner had no rights conferred by the Geneva Conventions that could be adjudicated in federal court likewise did not persuade the Court to dismiss the case. Regardless of whether the Geneva Conventions provide rights that are enforceable in Article III courts, the Court found that Congress, by incorporating the "law of war" into UCMJ art. 21, brought the Geneva Conventions within the scope of law to be applied by courts. The Court disagreed that the Eisentrager case requires another result, noting that the Court there had decided the treaty question on the merits based on its interpretation of the Geneva Convention of 1929 and that the 1949 Conventions were drafted to reject that interpretation. Justice Scalia, joined by Justices Thomas and Alito, dissented, arguing that the DTA should be interpreted to preclude the Court's review.
In response to the holding by the court below that Hamdan, as a putative member of al Qaeda, was not entitled to any of the protections accorded by the Geneva Conventions, the Court concluded that at the very least, Common Article 3 of the Geneva Conventions applies, even to members of al Qaeda, according to them a minimum baseline of protections, including protection from the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Although recognizing that Common Article 3 "obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict" and that "its requirements are general ones, crafted to accommodate a wide variety of legal systems," the Court found that the military commissions under M.C.O. No. 1 do not meet these criteria. In particular, the military commissions are not "regularly constituted" because they deviate too far, in the Court's view, from the rules that apply to courts-martial, without a satisfactory explanation of the need for such deviation.
With respect to the authority to create the military commissions, the Court held that any power to create them must flow from the Constitution and must be among those "powers granted jointly to the President and Congress in time of war." It disagreed with the government's position that Congress had authorized the commissions either when it passed the Authorization to Use Military Force (AUMF) or the DTA. Although the Court assumed that the AUMF activated the President's war powers, it did not view the AUMF as expanding the President's powers beyond the authorization set forth in the UCMJ. The Court also noted that the DTA, while recognizing the existence of military commissions, does not specifically authorize them. At most, these statutes "acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the 'Constitution and laws,' including the law of war."
In addition to limiting military commissions to trials of offenders and offenses that are by statute or by the law of war consigned to such tribunals, the UCMJ provides limitations with respect to the procedural rules that may be employed. Article 36 (10 U.S.C. § 836) authorizes the President to prescribe rules for "pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals." Such rules are to "apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts" insofar as the President "considers practicable" but that "may not be contrary to or inconsistent" with the UCMJ. In addition, rules made pursuant to this authority "shall be uniform insofar as practicable." The President had determined with respect to the military commissions that "it is impracticable to apply the rules and principles of law that govern 'the trial of criminal cases in the United States district courts'" but made no determination with respect to the practicability of applying rules different from those that apply in courts-martial.
The Court interpreted article 36 to provide the President discretion to determine which federal court rules need not be applied by various military tribunals due to their impracticability. However, the Court read the uniformity requirement as according less discretion to the President to determine what is practicable when providing different rules for courts-martial, military commissions, and other military tribunals. Unlike the requirement for rules to track closely with federal court rules, which the President need follow only insofar as he deems practicable, the Court reasoned, the uniformity requirement applies unless its application is demonstrably impracticable. Thus, less deference was found owing, and the Court found that the government had failed to demonstrate that circumstances make any courts-martial rules impracticable for use in military commissions. Further, the Court found that some of the rules provided in the Defense Department rules set forth in Military Commission Order No. 1 ("M.C.O. No. 1"), in particular the provision allowing the exclusion of the defendant from attending portions of his trial or hearing some of the evidence against him, deviated substantially from the procedures that apply in courts-martial in violation of UCMJ article 36.
section_title: Department of Defense Rules for Military Commissions
paragraphs: M.C.O. No. 1 sets forth procedural rules for the establishment and operation of military commissions convened pursuant to the November 13, 2001, M.O. It addresses the jurisdiction and structure of the commissions, prescribes trial procedures, including standards for admissibility of evidence and procedural safeguards for the accused, and establishes a review process. The Hamdan Court found the rules insufficient to meet UCMJ standards and noted that the review process was not sufficiently independent of the armed services to warrant the Court's abstention until the petitioner's case was finally decided. M.C.O. No. 1 also contains various mechanisms for safeguarding sensitive government information, which the Court found problematic in that they could have permitted evidence to be withheld from the accused but nevertheless considered by the military commission. The Hamdan Court left open the possibility that the rules established by M.C.O. No. 1 would be valid if Congress were to explicitly approve them.
Other orders and instructions may also call for specific congressional approval to remain valid. M.C.O. No. 3, "Special Administrative Measures for Certain Communications Subject to Monitoring," establishes procedures for authorizing and controlling the monitoring of communications between detainees and their defense counsel for security or intelligence-gathering purposes. M.C.O. No. 2 and 4 designate appointing officials.
M.C.I. No. 1 provides guidance for interpretation of the instructions as well as for issuing new instructions. It states that the eight M.C.I. apply to all DOD personnel as well as prosecuting attorneys assigned by the Justice Department and all civilian attorneys who have been qualified as members of the pool. Failure on the part of any of these participants to comply with any instructions or other regulations "may be subject to the appropriate action by the Appointing Authority, the General Counsel of the Department of Defense, or the Presiding Officer of a military commission." "Appropriate action" is not further defined, nor is any statutory authority cited for the power. M.C.I. No. 1 also reiterates that none of the instructions is to be construed as creating any enforceable right or privilege.
subsections: section_title: Jurisdiction
paragraphs: The President's M.O. has been criticized as overly broad in its assertion of jurisdiction, because it could be interpreted to cover non-citizens who have no connection with Al Qaeda or the terrorist attacks of September 11, 2001. It has been argued that the constitutional and statutory authority of the President to establish military tribunals does not extend any further than Congress' authorization to use armed force in response to the attacks. Under a literal interpretation of the M.O., however, the President may designate as subject to the order any non-citizen he believes has ever engaged in any activity related to international terrorism, no matter when or where these acts took place. A person subject to the M.O. may be detained and possibly tried by military tribunal for violations of the law of war and "other applicable law."
M.C.O. No. 1 does not explicitly limit its coverage to the scope of the authorization of force, but it clarifies somewhat the ambiguity with respect to the offenses covered. M.C.O. No. 1 establishes that commissions may be convened to try aliens who are designated by the President as subject to the M.O., whether captured overseas or on U.S. territory, for violations of the law of war and "all other offenses triable by military commissions." Although this language is somewhat narrower than "other applicable law," it remains vague. However, the statutory language recognizing the jurisdiction of military commissions is similarly vague, such that the M.C.O. does not appear on its face to exceed the statute with respect to jurisdiction over offenses. Justice Stevens, joined in that portion of the Hamdan opinion by only three other Justices, undertook an inquiry of military commission precedents to determine that "conspiracy" is not a valid charge. M.C.O. No. 1 does not resolve the issue of whether the President may, consistent with the Constitution, direct that criminal statutes defined by Congress to be dealt with in federal court be redefined as "war crimes" to be tried by the military, but the Hamdan decision may be interpreted to counsel against such an interpretation.
By statute, military tribunals may be used to try "offenders or offenses designated by statute or the law of war." There are only two statutory offenses for which convening a military commission is explicitly recognized: aiding the enemy and spying (in time of war). It appears that "offenses designated by the law of war" are not necessarily synonymous with "offenses against the law of war." Military tribunals may also be used to try civilians in occupied territory for ordinary crimes. During a war, they may also be used to try civilians for committing belligerent acts, even those for which lawful belligerents would be entitled to immunity under the law of war, but only where martial law or military government may legally be exercised or on the battlefield, where civilian courts are closed. Such acts are not necessarily offenses against the law of war (that is, they do not amount to an international war crime), but are merely unprivileged under it, although courts and commentators have tended to use the terms interchangeably. Justice Stevens opined for the plurality that military commissions in the present circumstances have jurisdiction only for belligerent offenses and that martial law and military occupation courts will not serve as precedent for jurisdiction purposes.
Some argue that civilians, including unprivileged combatants unaffiliated with a state (or other entity with "international personality" necessary for hostilities to amount to an "armed conflict"), are not directly subject to the international law of war and thus may not be prosecuted for violating it. They may, however, be prosecuted for most belligerent acts under ordinary domestic law, irrespective of whether such an act would violate the international law of war if committed by a soldier. Under international law, those offenders who are entitled to prisoner of war (POW) status under the Third Geneva Convention ["GPW"] are entitled to be tried by court-martial and may not be tried by a military commission offering fewer safeguards than a general court-martial, even if those prisoners are charged with war crimes. In the case of a non-international conflict, Common Article 3 of the Geneva Conventions protects even non-POWs from the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
subsections: section_title: Subject-Matter Jurisdiction
paragraphs: M.C.I. No. 2, Crimes and Elements for Trials by Military Commission, details some of the crimes that might be subject to the jurisdiction of the commissions. Unlike the rest of the M.C.I. issued so far, this instruction was published in draft form by DOD for outside comment. The final version appears to have incorporated some of the revisions, though not all, suggested by those who offered comments. The revision clarifies that the burden of proof is on the prosecution, precludes liability for ex post facto crimes, adds two new war crimes, and clearly delineates between war crimes and "other offenses triable by military commission."
M.C.I. No. 2 clarifies that the crimes and elements derive from the law of war, but does not provide any references to international treaties or other sources that comprise the law of war. The instruction does not purport to be an exhaustive list; it is intended as an illustration of acts punishable under the law of war or triable by military commissions. "Aiding the enemy" and "spying" are included under the latter group, but are not defined with reference to the statutory authority in UCMJ articles 104 and 106 (though the language is very similar). Terrorism is also defined without reference to the statutory definition in title 18, U.S. Code. Although the Supreme Court long ago stated that charges of violations of the law of war tried before military commissions need not be as exact as those brought before regular courts, it appears that the current Court will look more favorably on prosecutions where charges are fully supported by precedent.
It appears that "offenses triable by military commissions" in both the M.O. and M.C.O. No. 1 could cover ordinary belligerent acts carried out by unlawful combatants, regardless of whether they are technically war crimes. The draft version of M.C.I. No. 2 made explicit that
Even an attack against a military objective that normally would be permitted under the law of armed conflict could serve as the basis for th[e] offense [of terrorism] if the attack itself constituted an unlawful belligerency (that is, if the attack was committed by an accused who did not enjoy combatant immunity).
Thus, under the earlier draft language, it appeared that a Taliban fighter who attacked a U.S. or coalition soldier, or perhaps even a soldier of the Northern Alliance prior to the arrival of U.S. forces, for example, could be charged with "terrorism" and tried by a military tribunal.
However, the final version of M.C.I. No.2 substituted the following language:
The requirement that the conduct be wrongful for this crime necessitates that the conduct establishing the offense not constitute an attack against a lawful military objective undertaken by military forces of a State in the exercise of their official duties.
The change appears to have eliminated the possibility that Taliban fighters could be charged with "terrorism" in connection with combat activities; however, under the DOD rules, such a fighter could still be charged with murder or destruction of property "by an unprivileged belligerent" for participating in combat, as long as the commission finds that the accused "did not enjoy combatant immunity," which, according the to the instruction, is enjoyed only by "lawful combatants." "Lawful combatant" is not further defined. Inasmuch as the President had declared that all of the detainees incarcerated at Guantánamo Bay, whether members of the Taliban or members of Al Qaeda, are unlawful combatants, it appears unlikely that the defense of combat immunity would be available. It is unclear whether other defenses, such as self-defense or duress, would be available to the accused. M.C.I. No. 2 states that such defenses may be available, but that "[i]n the absence of evidence to the contrary, defenses in individual cases are presumed not to apply."
section_title: Temporal and Spatial Jurisdiction
paragraphs: The law of war has traditionally applied within the territorial and temporal boundaries of an armed conflict between at least two belligerents. It has not traditionally been applied to conduct occurring on the territory of neutral states or on the territory of a belligerent that lies outside the zone of battle, to conduct that preceded the outbreak of hostilities, or to conduct during hostilities that do not amount to an armed conflict. With respect to the international conflict in Afghanistan, in which coalition forces ousted the Taliban government, it appears relatively clear when and where the law of war would apply. The war on terrorism, however, does not have clear boundaries in time or space, 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 exceeds the customary law of armed conflict, which M.C.I. No. 2 purports to restate. Any military commissions established to comply with Hamdan will likely have a better chance of withstanding court scrutiny if they are supported by ample precedent or explicit statutory definition.
A common element among the crimes enumerated in M.C.I. No.2 is that the conduct "took place in the context of and was associated with armed conflict." The instruction explains that the phrase requires a "nexus between the conduct and armed hostilities," which has traditionally been a necessary element of any war crime. However, the definition of "armed hostilities" is broader than the customary definition of war or "armed conflict." "Armed hostilities" need not be a declared war or "ongoing mutual hostilities." Instead, any hostile act or attempted hostile act might have sufficient nexus if its severity rises to the level of an "armed attack," or if it is intended to contribute to such acts. Some commentators have argued that the expansion of "armed conflict" beyond its customary bounds improperly expands the jurisdiction of military commissions beyond those that by statute or under the law of war are triable by military commissions. The Supreme Court has not clarified the scope of the "Global War on Terrorism" but seems to have demonstrated a willingness to address the issue rather than deferring to the President's interpretation.
The definition for "Enemy" provided in M.C.I. No. 2 raises similar issues. According to § 5(B), "Enemy" includes
any entity with which the United States or allied forces may be engaged in armed conflicts or which is preparing to attack the United States. It is not limited to foreign nations, or foreign military organizations or members thereof. "Enemy" specifically includes any organization of terrorists with international reach.
Some observers argue that this impermissibly subjects suspected international criminals to the jurisdiction of military commissions in circumstances in which the law of armed conflict has never applied. 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.
section_title: Composition and Powers
paragraphs: Under M.C.O. No. 1, the planned military commissions consist of a panel of three to seven military officers as well as one or more alternate members who had been "determined to be competent to perform the duties involved" by the Secretary of Defense or his designee, and could include reserve personnel on active duty, National Guard personnel in active federal service, and retired personnel recalled to active duty. The rules also permit the appointment of persons temporarily commissioned by the President to serve as officers in the armed services during a national emergency. The presiding officer is required to be a judge advocate in any of the U.S. armed forces, but not necessarily a military judge.
The presiding officer is vested with the authority to decide evidentiary matters and interlocutory motions, or to refer them to the commission or certify them to Appointing Authority for decision. The presiding officer has the power to close any portion of the proceedings in accordance with M.C.O. No. 1, and "to act upon any contempt or breach of Commission rules and procedures," including disciplining any individual who violates any "laws, rules, regulations, or other orders" applicable to the commission, as the presiding officer saw fit. Presumably this power was to include not only military and civilian attorneys but also any witnesses who had been summoned under order of the Secretary of Defense pursuant to M.C.O. No. 1 § 5(A)(5). The UCMJ authorizes military commissions to punish contempt with a fine of $100, confinement for up to 30 days, or both. Under the UCMJ, a duly subpoenaed witness who is not subject to the UCMJ and who refuses to appear before a military commission may be prosecuted in federal court. To the extent that M.C.O. No. 1 would allow disciplinary measures against civilian witnesses who refuse to testify or produce other evidence as ordered by the commission, M.C.O. No. 1 would appear to be inconsistent with the UCMJ.
One of the perceived shortcomings of the M.O. has to do with the problem of command influence over commission personnel. M.C.O. No. 1 provides for a "full and fair trial," but contains few specific safeguards to address the issue of impartiality. Under the rules as presently written, the President would have complete control over the proceedings. He or his designee decide which charges to press, select the members of the panel, the prosecution and the defense counsel, select the members of the review panel, and approve and implement the final outcome. The procedural rules remain entirely under the control of the President or his designees, who are vested with authority to write them, interpret them, enforce them, and amend them at any time. All commission personnel other than the commission members themselves are under the supervision of the Secretary of Defense, directly or through the DOD General Counsel. The Secretary of Defense acted as the direct supervisor of Review Panel members. Originally, both the Chief Prosecutor and the Chief Defense Counsel were to report ultimately to the DOD General Counsel, which led some critics to warn that defense counsel were insufficiently independent from the prosecution. DOD subsequently amended the instructions so that the Chief Prosecutor reports to the Legal Advisor to the Appointing Authority, but as Justice Kennedy noted in his concurring opinion, the concentration of authority in the Appointing Authority remains a significant departure from the structural safeguards Congress has built into the military justice system.
The following sections summarize provisions of the procedural rules meant to provide appropriate procedural safeguards.
section_title: Procedures Accorded the Accused
paragraphs: The military commissions established pursuant to M.C.O. No. 1 have procedural safeguards similar to many of those that apply in general courts-martial, but the M.C.O. does not specifically adopt any procedures from the UCMJ, even those that explicitly apply to military commissions. The M.C.O. provides that only the procedures it prescribes or any supplemental regulations that may be established pursuant to the M.O., and no others shall govern the trials, perhaps precluding commissions from looking to the UCMJ or other law to fill in any gaps. The M.C.O. does not explicitly recognize that accused persons have rights under the law. The procedures that are accorded to the accused do not give rise to any enforceable right, benefit or privilege, and are not to be construed as requirements of the U.S. Constitution. The accused has no opportunity to challenge the interpretation of the rules or seek redress in case of a breach.
The procedural safeguards are for the most part listed in section 5. The accused is entitled to be informed of the charges sufficiently in advance of trial to prepare a defense, shall be presumed innocent until determined to be guilty beyond a reasonable doubt by two thirds of the commission members, shall have the right not to testify at trial unless he so chooses, shall have the opportunity to present evidence and cross-examine witnesses for the prosecution, and may be present at every stage of proceeding unless it is closed for security concerns or other reasons. The presumption of innocence and the right against self-incrimination will result in an entered plea of "Not Guilty" if the accused refuses to enter a plea or enters a "Guilty" plea that is determined to be involuntary or ill informed.
subsections: section_title: Open Hearing
paragraphs: The trials themselves are to be conducted openly except to the extent the Appointing Authority or presiding officer closes proceedings to protect classified or classifiable information or information protected by law from unauthorized disclosure, the physical safety of participants, intelligence or law enforcement sources and methods, other national security interests, or "for any other reason necessary for the conduct of a full and fair trial." DOD invited members of the press to apply for permission to attend the trials, although it initially informed Human Rights Watch and other groups that logistical issues would likely preclude their attendance. However, at the discretion of the Appointing Authority, "open proceedings" need not necessarily be open to the public and the press. Proceedings may be closed to the accused or the accused's civilian attorney, but not to detailed defense counsel. Furthermore, counsel for either side must obtain permission from the Appointing Authority or the DOD General Counsel in order to make a statement to the press.
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. The First Amendment right of public access extends to trials by court-martial, 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. Because procedures established under M.C.O. No. 1 appear to allow the exclusion of the press and public based on the discretion of the Appointing Authority without any consideration of the above requirements with respect to the specific exigencies of the case at trial, the procedures may implicate the First Amendment rights of the press and public.
Although the First Amendment bars government interference with the free press, it does not impose on the government a duty "to accord the press special access to information not shared by members of the public generally." The reporters' right to gather information does not include an absolute right to gain access to areas not open to the public. Thus, if the military commissions were to sit in areas off-limits to the public for other valid reasons, media access may be restricted for reasons of operational necessity. Access of the press to the proceedings of military commissions may be an issue of contention for the courts ultimately to decide, even if those tried by military commission are determined to lack the protection of the Sixth Amendment right to an open trial or means to challenge the trial.
section_title: Right to Counsel
paragraphs: Once charges are referred, the defendant will have military defense counsel assigned free of cost, but may request another JAG officer, who will be provided as a replacement if available in accordance with any applicable instructions or supplementary regulations that might later be issued. The accused does not have the right to refuse counsel in favor of self-representation. M.C.I. No. 4 requires detailed defense counsel to "defend the accused zealously within the bounds of the law ... notwithstanding any intention expressed by the accused to represent himself."
The accused may also hire a civilian attorney at his own expense, but must be represented by assigned defense counsel at all relevant times, even if he retains the services of a civilian attorney. Civilian attorneys may apply to qualify as members of the pool of eligible attorneys, or may seek to qualify ad hoc at the request of an accused. Some critics argue the rules provide disincentives for the participation of civilian lawyers. Civilian attorneys must agree that the military commission representation will be his or her primary duty, and are not permitted to bring any assistants, such as co-counsel or paralegal support personnel, with them to the defense team. Originally, all defense and case preparation was to be done on site, and civilian attorneys were not to share documents or discuss the case with anyone but the detailed counsel or the defendant. These restrictions, read literally, might have prevented civilian defense counsel from conducting witness interviews or seeking advice from experts in humanitarian law, for example. However, the Pentagon later released a new version of M.C.I. No. 5 that loosened the restrictions to allow communications with "individuals with particularized knowledge that may assist in discovering relevant evidence."
Civilian attorneys must meet strict qualifications to be admitted before a military commission. The civilian attorney must be a U.S. citizen (except for those representing Australian detainees ) with at least a SECRET clearance, who is admitted to the bar of any state or territory. Furthermore, the civilian attorney may not have any disciplinary record, and must agree in writing to comply with all rules of court. The civilian attorney is not guaranteed access to closed hearings or information deemed protected under the rules, which may or may not include classified information.
The requirement that civilian counsel must agree that communications with the client may be monitored has been modified to require prior notification and to permit the attorney to notify the client when monitoring is to occur. Although the government will not be permitted to use information against the accused at trial, some argue the absence of the normal attorney-client privilege could impede communications between them, possibly decreasing the effectiveness of counsel. Civilian attorneys are bound to inform the military counsel if they learn of information about a pending crime that could lead to "death, substantial bodily harm, or a significant impairment of national security." M.C.I. No. 5 provides no criteria to assist defense counsel in identifying what might constitute a "significant impairment of national security."
All defense counsel are under the overall supervision of the Office of the Chief Defense Counsel, which is entrusted with the proper management of personnel and resources the duty to preclude conflicts of interest. The M.C.O. further provides that "in no circumstance shall accommodation of counsel be allowed to delay proceedings unreasonably." The Appointing Authority may revoke any attorney's eligibility to appear before any commission.
Some attorneys' groups have voiced opposition to the restrictions and requirements placed on civilian defense counsel, arguing the rules would not allow a defense attorney ethically to represent any client. The board of directors for the National Association of Criminal Defense Lawyers issued an ethics statement saying that it is unethical for a lawyer to represent a client before a military tribunal under the current rules and that lawyers who choose to do so are bound to contest the unethical conditions." The House of Delegates of the American Bar Association (ABA) took no position on whether civilian lawyers should participate in the tribunals, but urged the Pentagon to relax some of the rules, especially with respect to the monitoring of communications between clients and civilian attorneys. The National Institute of Military Justice, while echoing concerns about the commission rules, has stated that lawyers who participate will be performing an important public service.
section_title: Discovery
paragraphs: The accused has the right to view evidence the Prosecution intends to present as well as any exculpatory evidence known, as long as it is not deemed to be protected under Sec. 6(D)(5). In courts-martial, by contrast, 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.
The accused may also obtain witnesses and documents "to the extent necessary and reasonably available as determined by the Presiding Officer" and subject to secrecy determinations. The Appointing Authority shall make available to the accused "such investigative or other resources" deemed necessary for a full and fair trial. Access to other detainees who might be able to provide mitigating or exculpatory testimony may be impeded by the prohibition on defense counsel from entering into agreements with "other Accused or Defense Counsel that might cause them or the Accused they represent to incur an obligation of confidentiality with such other Accused or Defense Counsel or to effect some other impediment to representation." In other words, communications with potential witnesses would not be privileged and could be used against the witness at his own trial.
The overriding consideration with regard to whether the accused or defense counsel (including detailed defense counsel) may gain access to information appears to be the need for secrecy. The presiding officer may delete specific items from any information to be made available to the accused or defense counsel, or may direct that unclassified summaries of protected information be prepared. However, no evidence may be admitted for consideration by the rest of the commission members unless it has been made available to at least the detailed defense counsel. Information that was reviewed by the presiding officer ex parte and in camera but withheld from the defense over defense objection will be sealed and annexed to the record of the proceedings for review by the various reviewing authorities. Nothing in the M.C.O. limits the purposes for which the reviewing authorities may use such material.
section_title: Right to Face One's Accuser
paragraphs: The presiding officer may authorize any methods appropriate to protect witnesses, including telephone or other electronic means, closure of all or part of the proceedings and the use of pseudonyms. The commission may consider sworn or unsworn statements, and these apparently may be read into evidence without meeting the requirements for authentication of depositions and without regard to the availability of the witness under the UCMJ, as these provisions expressly apply to military commissions. UCMJ articles 49 and 50 could be read to apply to military commissions the same rules against hearsay used at courts-martial; however, the Supreme Court has declined to apply similar provisions to military commissions trying enemy combatants.
It was the provision for the use of secret evidence and for the exclusion of the accused from portions of the hearings that the district court found most troubling in Hamdan. The court declared "[i]t is obvious beyond the need for citation that such a dramatic deviation from the confrontation clause could not be countenanced in any American court ..." and found it apparent that "the right to trial 'in one's presence' is established as a matter of international humanitarian and human rights law." Under UCMJ art. 39, the accused at a court-martial has the right to be present at all proceedings other than the deliberation of the members.
section_title: Admissibility of Evidence
paragraphs: The standard for the admissibility of evidence remains as it was stated in the M.O.; evidence is admissible if it is deemed to have "probative value to a reasonable person." This is a significant departure from the Military Rules of Evidence (Mil. R. Evid.), which provide that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States [and other applicable statutes, regulations and rules]." In a court-martial, relevant evidence may be excluded if its probative value is substantially outweighed by other factors.
"Probative value to a reasonable man" is a seemingly lax standard for application to criminal trials. A reasonable person could find plausible sounding rumors or hearsay to be at least somewhat probative, despite inherent questions of reliability and fairness that both federal and military rules of evidence are designed to address. Furthermore, defendants before military commissions do not appear to have the right to move that evidence be excluded because of its propensity to create confusion or unfair prejudice, or because it was unlawfully obtained or coerced through the use of measures less severe than torture. In March 2006, DOD released M.C.I. No. 10 prohibiting prosecutors from introducing, and military commissions from admitting, statements established to have been made as a result of torture.
section_title: Sentencing
paragraphs: The prosecution must provide in advance to the accused any evidence to be used for sentencing, unless good cause is shown. The accused may present evidence and make a statement during sentencing proceedings; however, this right does not appear to mirror the right to make an unsworn statement that military defendants may exercise in regular courts-martial. Statements made by the accused during the sentencing phase appear to be subject to cross-examination.
Possible penalties include execution, imprisonment for life or any lesser term, payment of a fine or restitution (which may be enforced by confiscation of property subject to the rights of third parties), or "such other lawful punishment or condition of punishment" determined to be proper. Detention associated with the accused's status as an "enemy combatant" will not count toward serving any sentence imposed. If the sentence includes confinement, it is unclear whether or how the conditions of imprisonment will differ from that of detention as an "enemy combatant." Sentences agreed in plea agreements are binding on the commission, unlike regular courts-martial, in which the agreement is treated as the maximum sentence. Similar to the practice in military courts-martial, the death penalty may only be imposed upon a unanimous vote of the Commission. In courts-martial, however, both conviction for any crime punishable by death and any death sentence must be by unanimous vote. None of the rules specify which offenses might be eligible for the death penalty, but the Pentagon announced the death penalty will not be sought in the cases brought so far.
section_title: Post-Trial Procedure
paragraphs: One criticism leveled at the language of the M.O. was that it does not include an opportunity for the accused to appeal a conviction, and appears to bar habeas corpus relief. Another was that it appears to allow the Secretary of Defense (or the President) the discretion to change the verdict, and does not protect persons from double jeopardy. M.C.O. No.1 addresses these issues in part.
subsections: section_title: Review and Appeal
paragraphs: The rules provide for the administrative review of the trial record by the Appointing Authority, who forwards the record, if found satisfactory, to a review panel consisting of three military officers, one of whom must have experience as a judge. The Bush Administration has announced its intent to commission four individuals to active duty to serve on the Military Commission Review Panels. They are Griffin Bell, a former U.S. attorney general and judge of the U.S. Court of Appeals for the 5 th Circuit; Edward Biester, a former Member of the U.S. House of Representatives and current judge of the Court of Common Pleas of Bucks County, Pennsylvania; the Honorable William T. Coleman Jr., a former Secretary of Transportation; and Chief Justice Frank Williams of the Rhode Island Supreme Court.
There is no opportunity for the accused to appeal a conviction in the ordinary sense. The review panel may, however, at its discretion, review any written submissions from the prosecution and the defense, who do not appear to have an opportunity to view or rebut the submission from the opposing party. If the review panel forms a "firm and definite conviction that a material error of law occurred," it returns the case to the Appointing Authority for further proceedings. If the review panel determines that one or more charges should be dismissed, the Appointing Authority is bound to do so. For other cases involving errors, the Appointing Authority is required to return the case to the military commission. Otherwise, the case is forwarded to the Secretary of Defense with a written recommendation. (Under the UCMJ, the trial record of a military commission would be forwarded to the appropriate JAG first.)
After reviewing the record, the Secretary of Defense may forward the case to the President or return it for further proceedings for any reason, not explicitly limited to material errors of law. The M.C.O. does not indicate what "further proceedings" may entail. If the Secretary of Defense is delegated final approving authority, he can approve or disapprove the finding, or mitigate or commute the sentence. The rules do not clarify what happens to a case that has been "disapproved." It is unclear whether a disapproved finding is effectively vacated and remanded to the military commission for a rehearing.
The UCMJ forbids rehearings or appeal by the government of verdicts amounting to a finding of Not Guilty, and prohibits the invalidation of a verdict or sentence due to an error of law unless the error materially prejudices the substantial rights of the accused. The M.C.O. does not contain any such explicit prohibitions, but M.C.I. No. 9 defines "Material Error of Law" to exclude variances from the M.O. or any of the military orders or instructions promulgated under it that would not have had a material effect on the outcome of the military commission. M.C.I. No. 9 allows the review panel to recommend the disapproval of a finding of Guilty on a basis other than a material error of law. It does not indicate what options the review panel would have with respect to findings of Not Guilty.
M.C.O. No. 1 does not provide a route for a convicted person to appeal to any independent authority. Persons subject to the M.O. are described as not privileged to "seek any remedy or maintain any proceeding, directly or indirectly" in federal or state court, the court of any foreign nation, or any international tribunal. However, a defendant may petition a federal court for a writ of habeas corpus to challenge the jurisdiction of the military commission.
section_title: Protection Against Double Jeopardy
paragraphs: The M.C.O. provides that the accused may not be tried for the same charge twice by any military commission once the commission's finding on that charge becomes final (meaning once the verdict and sentence have been approved). Therefore, apparently, jeopardy does not attach—there has not been a "trial"—until the final verdict has been approved by the President or the Secretary of Defense. In contrast, at general courts-martial, jeopardy attaches after the first introduction of evidence by the prosecution. If a charge is dismissed or is terminated by the convening authority after the introduction of evidence but prior to a finding, through no fault of the accused, or if there is a finding of Not Guilty, the trial is considered complete for purposes of jeopardy, and the accused may not be tried again for the same charge by any U.S. military or federal court without the consent of the accused. Although M.C.O. No. 1 provides that an authenticated verdict of Not Guilty by the commission may not be changed to Guilty, either the Secretary of Defense or the President may disapprove the finding and return the case for "further proceedings" prior to the findings' becoming final, regardless of the verdict. If a finding of Not Guilty is referred back to the commission for rehearing, double jeopardy may be implicated.
Another double jeopardy issue that might arise is related to the requirements for the specification of charges. M.C.O. No. 1 does not provide a specific form for the charges, and does not require an oath or signature. If the charge does not adequately describe the offense, another trial for the same offense under a new description is not as easily prevented. M.C.I. No. 2, setting forth elements of crimes triable by the commissions, may provide an effective safeguard; however, new crimes may be added to its list at any time.
The M.O. also left open the possibility that a person subject to the order might be transferred at any time to some other governmental authority for trial. 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.
Conversely, the M.O. provides the President may determine at any time that an individual is subject to the M.O., at which point any state or federal authorities holding the individual would be required to turn the accused over to military authorities. If the accused were already the subject of a federal criminal trial under charges for the same conduct that resulted in the President's determination that the accused is subject to the M.O., and if jeopardy had already attached in the federal trial, double jeopardy could be implicated by a new trial before a military commission. M.C.O. No. 1 does not explicitly provide for a double jeopardy defense under such circumstances.
section_title: Military Commission Legislation
paragraphs: The Bush Administration has presented to Congress a proposal to be cited as the "Military Commissions Act of 2006." Senator Frist introduced very similar legislation, the "Bringing Terrorists to Justice Act of 2006," as S. 3861 and as title I of S. 3886 , the "Terrorist Tracking, Identification, and Prosecution Act of 2006." The Senate Armed Services Committee reported favorably a bill, "Military Commissions Act of 2006" ( S. 3901 ), which is in most respects similar to the Administration's proposal, but varies with respect to jurisdiction and some rules of evidence. The House Armed Services Committee approved H.R. 6054 , also called the "Military Commissions Act of 2006," which closely tracks the Administration's proposal. After reaching an agreement with the White House with respect to several provisions in S. 3901 , Senator McConnell introduced S. 3930 , also entitled the "Military Commissions Act of 2006."
All of these bills would authorize the trials of "alien unlawful combatants" by military commissions for a set of enumerated crimes and provide the accused with certain rights. All of the bills would add a new chapter 47a after the UCMJ in title 10, U.S. Code. They leave intact the President's authority to establish military commissions under the UCMJ, but the Senate bills would seemingly expand that authority by removing the limitation of such trials to offenses and offenders triable by military commission pursuant to "statute or the law of war." All of the bills would amend article 36, UCMJ (10 U.S.C. § 836) to exclude military commissions from the need to comply to the extent the President deems practicable with the procedural rules that apply in federal district courts.
To various degrees, the bills clarify that the UCMJ does not apply to military commissions. S. 3901 and S. 3930 provide that "[e]xcept as otherwise provided [in the bill or in the UCMJ], the procedures and rules of evidence applicable in trials by general courts-martial of the United States shall apply in trials by military commission under this chapter." (Proposed § 949a(a)). However, they permit the Secretary of Defense, in consultation with the Attorney General, to make such exceptions in the applicability in trials by military commission under this chapter from the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need." (Proposed § 949a(b)). S. 3901 notes that some provisions of the UCMJ do not apply by their terms, and that "[t]he judicial construction and application of chapter 47 of this title, while instructive, is therefore not of its own force binding on military commissions...." S. 3930 and the other bills provide that the judicial application and construction of the UCMJ does not bind the interpretation of the new chapter. (Proposed 10 U.S.C. § 948b(b)).
The bills each declare that the military commissions are "regularly constituted affording all the necessary 'judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions." However, all of the bills provide that the Geneva Conventions may not be invoked as a source of rights in any U.S. court.
subsections: section_title: Personal Jurisdiction
paragraphs: S. 3901 and S. 3930 define "unlawful enemy combatant" to mean "an individual engaged in hostilities against the United States who is not a lawful enemy combatant." (Proposed § 948a(4)). Jurisdiction of military commissions would extend to any "alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States." (Proposed 948c). Aliens who have supported hostilities without having actually engaged in hostilities would not seem to fit within the definition of unlawful enemy combatant, and yet the jurisdiction section appears to contemplate their trial by military commission.
H.R. 6054 , S. 3861 , and S. 3886 define "unlawful enemy combatant" to mean an individual determined by the President or the Secretary of Defense ... to be part of or affiliated with a force or organization ... that is engaged in hostilities against the United States or its co-belligerents in violation of the law of war"; or "to have committed a hostile act in aid of" or "to have supported hostilities in aid of such a force or organization so engaged." Lawful combatants, such as prisoners of war, are excluded from the jurisdiction of military commissions in all three bills. H.R. 6054 also excludes protected persons within the meaning of the Fourth Geneva Convention from the jurisdiction of military commissions. If the armed conflict is non-international in nature, as many interpret the Supreme Court's Hamdan opinion to establish, then no person can qualify for POW status under the third Geneva Convention or "protected person" status within the meaning of article 4 of the Fourth Geneva Convention. All persons in captivity would be entitled to protected status within the meaning of Common Article 3, however.
None of the bills defines "hostilities" or explains what conduct amounts to "supporting hostilities." To the extent that the jurisdiction is interpreted to include conduct that falls outside the accepted definition of participation in an armed conflict, the bills might run afoul of the courts' historical aversion to trying civilians before military tribunal when other courts are available. It is unclear whether this constitutional principle applies to aliens captured and detained overseas, but the bills do not appear to exempt from military jurisdiction permanent resident aliens captured in the United States who might otherwise meet the definition of "unlawful enemy combatant." It is generally accepted that aliens within the United States are entitled to the same protections in criminal trials that apply to U.S. citizens. Therefore, to subject persons to trial by military commission who do not meet the exception carved out by the Supreme Court in ex parte Quirin for unlawful belligerents, to the extent such persons enjoy constitutional protections, would likely raise significant constitutional questions.
section_title: Subject Matter Jurisdiction
paragraphs: All of the bills set forth a detailed list of crimes that may be tried by military commission when committed by alien unlawful combatants, provided, except in the case of H.R. 6054 , that the offense is committed "in the context of and associated with armed conflict." The bills (except S. 3901 ) each declare that they merely codify offenses that have traditionally been triable by military commissions, implying that no retroactively punishable offenses are created in violation of the Constitution's prohibition against ex post facto crimes and punishments or the analogous principle applicable under international law.
Although many of the crimes seem to be well-established offenses against the law of war, at least in the context of an international armed conflict, a court might conclude that some of the listed crimes are new. For example, a plurality of the Supreme Court in Hamdan agreed that conspiracy is not a war crime under the traditional law of war. The crime of "murder in violation of the law of war," which punishes persons who, as unprivileged belligerents, commit hostile acts that result in the death of any persons, including lawful combatants, may also be new. While it appears to be well-established that a civilian who kills a lawful combatant is triable for murder and cannot invoke the defense of combatant immunity, it is not clear that the same principle applies in armed conflicts of a non-international nature, where combatant immunity does not apply. The International Criminal Tribunal for the former Yugoslavia (ICTY) has found that war crimes in the context of non-international armed conflict include murder of civilians, but that the killing of a combatant is not a war crime.
section_title: Evidentiary Rules
paragraphs: All of the bills provide for the admission of evidence under rules that are more permissive than the Military Rules of Evidence.
subsections: section_title: Hearsay
paragraphs: S. 3901 would provide for the admission of hearsay evidence that would not be permitted under the Manual for Courts-Martial. The hearsay evidence is admissible only if the proponent of the evidence notifies the adverse party sufficiently in advance of the intention to offer the evidence, as well as the "particulars of the evidence (including information on the general circumstances under which the evidence was obtained)," and the military judge finds that "the totality of the circumstances render the evidence more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts, taking into consideration the unique circumstances of the conduct of military and intelligence operations during hostilities." ( S. 3901 , Proposed 10 U.S.C. § 949a(b)(3)). S. 3930 eliminates the latter consideration, but provides that the evidence is inadmissible if the party opposing its admission "clearly demonstrates that the evidence is unreliable or lacking in probative value."
H.R. 6054 , S. 3886 , and S. 3861 are similar to S. 3930 , providing that "Hearsay evidence is admissible unless the military judge finds that the circumstances render the evidence unreliable or lacking in probative value. However, such evidence may be admitted only if the proponent of the evidence makes the evidence known to the adverse party in advance of trial or hearing." The language does not indicate whether the any information about the source of the evidence must be provided.
section_title: Coerced Testimony
paragraphs: All five bills prohibit the use of statements obtained through torture as evidence in a trial, except as proof of torture against a person accused of committing torture. S. 3901 also provides for the exclusion of statements elicited through cruel, inhuman, or degrading treatment, and the exclusion of statements elicited through coercive methods not rising to the level of cruel, inhuman or degrading treatment as defined in the Detainee Treatment Act (DTA) only if the military judge finds that the totality of circumstances render it reliable and probative, and the interests of justice would best be served by allowing the commission members to hear the evidence.
S. 3930 provides a different standard for the admissibility of statements obtained through coercion that does not amount to torture depending on whether the statement was obtained prior to or after the enactment of the DTA. Statements elicited through such methods prior to the DTA would be admissible if the military judge finds the "totality of circumstances under which the statement was made renders it reliable and possessing sufficient probative value" and "the interests of justice would best be served" by admission of the statement. Statements taken after passage of the DTA would be admissible if, in addition to the two criteria above, the military judge finds that "the interrogation methods used to obtain the statement do not violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution."
H.R. 6054 , S. 3886 , and S. 3861 provide that "[a]n otherwise admissible statement, including a statement allegedly obtained by coercion, shall not be admitted in evidence in a military commission under this chapter if the military judge finds that the circumstances under which the statement was made render the statement unreliable or lacking in probative value."
section_title: Classified Evidence
paragraphs: All of the bills under discussion include provisions for the protection of classified information, generally permitting the substitution of redacted documents, unclassified summaries of documents, or statements setting forth what the classified information would tend to prove.
S. 3901 contains procedures that are similar to those provided in Military Rule of Evidence 505 for application at courts-martial. Classified information is to be protected during all stages of proceedings and is privileged from disclosure for national security purposes. Whenever the original classification authority or head of the agency concerned certifies in writing that particular evidence and its sources have been declassified to the maximum extent possible, the military judge may authorize, "to the extent practicable in accordance with the rules applicable in trials by court-martial," the "deletion of specified items of classified information from documents made available to the accused"; the substitution of a "portion or summary of the information"; or "the substitution of a statement admitting relevant facts that the classified information would tend to prove." The military judge must consider a claim of privilege and review any supporting materials in camera, and is not permitted to disclose the privileged information to the accused. Proposed 10 U.S.C. § 949d(c)(4). Similar substitutions would be permissible in the context of discovery (see infra ). Proposed 10 U.S.C. § 949j(c).
S. 3901 provides a guarantee that the accused must have the right to "examine and respond to all evidence considered by the military commission on the issue of guilt or innocence and for sentencing," and to "be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d of this title." Proposed 10 U.S.C. § 949a. Section 949d permits the exclusion of the accused only for disruptive behavior.
S. 3930 retains these provisions, and also includes a new subsection (e) to provide for the use of classified evidence at trial, to replace the provisions for classified information under proposed § 949(c) in S. 3901 . Under the procedures outlined, the government would be permitted to claim a privilege with respect to information if the head of an executive or military department or agency asserts the information is properly classified and disclosure would be detrimental to the national security, without requiring a certification that such information had been declassified to the maximum extent possible. When the government claims such a privilege, the military judge may authorize, "to the extent practicable," the "deletion of specified items of classified information from documents made available to the accused"; the substitution of a "portion or summary of the information"; or "the substitution of a statement admitting relevant facts that the classified information would tend to prove." Proposed § 949d(e)(2). The provision specifically allows the introduction of such alternative evidence to protect classified "sources, methods, or activities by which the United States acquired the evidence" as long as the evidence is "reliable." The military judge may require that the defense and the commission members be permitted to view an unclassified summary of the sources, methods, or activities, to the extent practicable and consistent with national security. Proposed 10 U.S.C. § 949d(e)(2). It does not appear that the defense counsel or the accused is permitted to present arguments to the military judge in opposition to the government's claim of privilege.
H.R. 6054 , S. 3886 , and S. 3861 provide for the exclusion of the accused from portions of his trial in order to allow classified information to be presented to panel members but not disclosed to the accused. Under these bills, the military judge would have authority to prevent the accused from attending a portion of the trial only after specifically finding that the exclusion of the accused is necessary to prevent "identifiable damage to the national security, including [by disclosing] intelligence or law enforcement sources, methods, or activities"; or is "necessary to ensure the physical safety of individuals"; or is necessary "to prevent disruption of the proceedings by the accused"; and that the exclusion of the accused "is no broader than necessary"; and "will not deprive the accused of a full and fair trial." Proposed 10 U.S.C. § 949d(e).
section_title: Discovery and Mandatory Provision of Exculpatory Information
paragraphs: Each of the bills provides that defense counsel is to be afforded a reasonable opportunity to obtain witnesses and other evidence, including evidence in the possession of the United States, as specified in regulations prescribed by the Secretary of Defense. The military commission is authorized to compel witnesses under U.S. jurisdiction to appear. The military judge may authorize discovery in accordance with rules prescribed by the Secretary of Defense to redact classified information or to provide an unclassified summary or statement describing the evidence. Proposed 10 U.S.C. § 949j.
Under H.R. 6054 , S. 3861 and S. 3886 , the trial counsel is obligated to disclose exculpatory evidence of which he is aware to the defense, but such information, if classified, is available to the accused only in a redacted or summary form, and only if making the information available is possible without compromising intelligence sources, methods, or activities, or other national security interests. Classified information is to be provided to military defense counsel, but civilian counsel is to have access only if he or she has the appropriate security clearance and such access is consistent with any procedures the Secretary of Defense implements for the protection of classified information. Defense counsel would not be able to share such information with the accused, which many observers assert could impair the defense's ability to refute any such evidence.
S. 3901 requires trial counsel to make available to the defense not only exculpatory information, but also any that would tend to "reduce the degree of guilt of the accused." It further provides that the military judge may authorize substitutions for classified information pursuant to rules similar to the rules that apply in courts-martial, to the extent practicable. Proposed 10 U.S.C. § 949j.
S. 3930 provides for the mandatory provision of exculpatory information only (defined as exculpatory evidence that the prosecution would be required to disclose in a general court-martial ), and does not permit defense counsel or the accused to view classified information. The military judge would be authorized to permit substitute information, including when trial counsel moves to withhold information pertaining to the sources, methods, or activities by which the information was acquired. The military judge may (but need not) require that the defense and the commission members be permitted to view an unclassified summary of the sources, methods, or activities, to the extent practicable and consistent with national security. Proposed 10 U.S.C. § 949j.
section_title: Post-Trial Procedure and Interlocutory Appeals
paragraphs: The DTA introduced an appellate mechanism for limited review of Combatant Status Review Tribunal (CSRT) determinations and final decisions of military commissions. S. 3901 would modify the DTA so that appeals would be heard in the Court of Appeals for the Armed Forces (CAAF) rather than the Court of Appeals for the District of Columbia Circuit. Proposed 10 U.S.C. § 950f. The CAAF would have the authority to review appeals of final decisions by the accused or interlocutory appeals by the government of military commission rulings that terminate proceedings of the military commission, exclude material evidence, or relate to the closure of hearings, the exclusion of the accused from proceedings, or the provision of substitute evidence to protect classified information. Proposed 10 U.S.C. § 950d. The defense would not have an opportunity to submit an interlocutory appeal in the event of rulings that are unfavorable to the accused. The government would not be permitted to appeal any ruling of a military commission that amounts to a finding of not guilty of any charge or specification. The scope of review would be limited to matters of law, and decisions could only be overturned if an error of law "materially prejudices the substantial rights of the accused." Proposed 10 U.S.C. §§ 950a and 950f.
S. 3930 , S. 3861 , S. 3886 , and H.R. 6054 would provide for similar appellate rules, but would route appeals through the Court of Military Commission Review (CMCR), a new body to be established by the Secretary of Defense, who would have the authority to promulgate procedural rules governing its operation. The CMCR would be comprised of appellate military judges who meet the same qualifications as military judges or comparable qualifications for civilian judges. Once the CMCR has approved the final decision of a military commission, the accused would have the right to petition for a determination by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit), pursuant to the section 1005(e)(3) of the DTA. The government would be permitted to submit interlocutory appeals to the CMCR of adverse rulings pertaining to the admission of evidence or that terminates commission proceedings with respect to a charge or specification (except for a ruling that amounts to a finding of not guilty), and in the event of an adverse ruling by the CMCR, would be permitted to appeal to the D.C. Circuit. The accused would not be permitted to appeal an adverse interlocutory ruling.
The following charts provide a comparison of the proposed military tribunals under the regulations issued by the Department of Defense, standard procedures for general courts-martial under the Manual for Courts-Martial, and military tribunals as proposed by H.R. 6054 and S. 3886 , and S. 3901 . Table 1 compares the legal authorities for establishing military tribunals, the jurisdiction over persons and offenses, and the structures of the tribunals. Table 2 , which compares procedural safeguards incorporated in the DOD regulations and the UCMJ, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts , in order to facilitate comparison of the proposed legislation to safeguards provided in federal court, the international military tribunals that tried World War II crimes at Nuremberg and Tokyo, and contemporary ad hoc tribunals set up by the UN Security Council to try crimes associated with hostilities in the former Yugoslavia and Rwanda.