The Military Commissions Act of 2006 (MCA): Background and Proposed Amendments
Released: 2009-09-08T00:00:00

Introduction

Shortly after combat operations began pursuant to the congressional authorization to use military force in response to the terrorist attacks of September 11, 2001, President Bush issued a Military Order (M.O.) authorizing trial by military commission of non-citizens suspected of terrorist acts or associations who were to be designated as subject to the M.O. President Bush subsequently determined that 20 of the detainees at the U.S. Naval Station in Guantánamo Bay held in connection with the conflict were subject to the M.O., and 10 were eventually charged for trial before military commissions. The M.O. specified that persons subject to it would have no recourse to the U.S. court system to appeal a verdict or obtain any other sort of relief, but the Supreme Court essentially invalidated that provision in its 2004 opinion, Rasul v. Bush .

Military commissions are courts usually set up by military commanders in the field to try persons accused of certain offenses during war. They may also try persons for ordinary crimes in cases of martial law or military occupation, where regular civil courts are not able to function. 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. Historically, military commissions have applied the same set of procedural rules that applied in courts-martial. By statute, military commissions have long been available to try "offenders or offenses designated by statute or the law of war." For the most part, military commissions have been employed where U.S. armed forces have established a military government or martial law, as in the war with Mexico, the Civil War, the Philippine Insurrection, and in occupied Germany and Japan after World War II.

President Bush'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 Bush Administration established rules prescribing detailed procedural safeguards for the tribunals. 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. 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., or that the Department of Defense (DOD) may continue to detain persons who have been cleared by a military commission. The Pentagon reportedly stated that its Inspector General (IG) looked into allegations, made by military lawyers assigned as prosecutors to the military commissions, that the proceedings were rigged to obtain convictions, but the IG did not substantiate the charges.

Congress took no action with respect to military commissions until after the Supreme Court's Rasul decision. At the end of December 2005, Congress enacted the Detainee Treatment Act of 2005 (DTA). The DTA did not authorize military commissions, but amended title 28, U.S. Code to revoke all judicial jurisdiction over habeas claims by persons detained as "enemy combatants," and it created jurisdiction in the Court of Appeals for the District of Columbia Circuit to hear appeals of final decisions of military commissions. The Supreme Court, in Hamdan v. Rumsfeld , invalidated the military commission system established by presidential order, holding that although Congress had in general authorized the use of military commissions, such commissions were required to follow procedural rules as similar as possible to courts-martial proceedings, as required by the Uniform Code of Military Justice (UCMJ). In response, Congress promptly passed the Military Commissions Act of 2006 (MCA) to authorize military commissions and establish procedural rules that are modeled after, but depart from in some significant ways, the UCMJ.

The Department of Defense issued regulations for the conduct of military commissions pursuant to the MCA. One detainee, David Matthew Hicks of Australia, was convicted of material support to terrorism pursuant to a plea agreement in 2007. In 2008, Salim Hamdan was found guilty of one count of providing material support for terrorism and sentenced to 66 months' imprisonment, but credited with five years' time served. Ali Hamza Ahmad Suliman al Bahlul of Yemen was found guilty of multiple counts of conspiracy and solicitation to commit certain war crimes and of providing material support for terrorism in connection with his role as al Qaeda's "propaganda chief." He refused representation and boycotted most of his trial, and was subsequently sentenced to life imprisonment.

On January 22, 2009, President Barack Obama issued an Executive Order requiring that the Guantanamo detention facility be closed no later than a year from the date of the Order. The Order requires specified officials to review all Guantanamo detentions to assess whether the detainee should continue to be held by the United States, transferred or released to another country, or be prosecuted by the United States for criminal offenses. During the review period, the Secretary of Defense is required to take steps to ensure that all proceedings before military commissions and the United States Court of Military Commission Review are halted, although some pretrial proceedings have continued to take place. Fifteen detainees currently stand charged under the MCA, while charges were dismissed without prejudice against five other detainees, one of whom has been ordered released by a federal judge. One case was moved to a federal district court.

In May, 2009, the Obama Administration announced that it was considering restarting the military commission system with some changes to the procedural rules. The Department of Defense informed Congress about modifications to the Manual for Military Commissions, to take effect July 14, 2009.

President Obama's Detention Policy Task Force issued a preliminary report July 20, 2009, reaffirming that the White House considers military commissions to be an appropriate forum for trying some cases involving suspected violations of the laws of the war, although federal criminal court would be the preferred forum for trials of detainees. The disposition of each case referred is to be assigned to a team comprised of DOJ and DOD personnel, including prosecutors from the Office of Military Commissions. Appended to the report was a set of criteria to govern the disposition of cases involving Guantanamo detainees. This protocol identifies three broad categories of factors to be taken into consideration:

Strength of interest, namely, the nature and gravity of offenses or underlying conduct; identity of victims; location of offense; location and context in which individual was apprehended; and the conduct of the investigation. Efficiency, namely, protection of intelligence source and methods; venue; number of defendants; foreign policy concerns; legal or evidentiary problems; efficiency and resource concerns. Other prosecution considerations, namely, the extent to which the forum and offenses that can be tried there permit a full presentation of the wrongful conduct, and the available sentence upon conviction.

Federal prosecutors are to evaluate their cases under "traditional principles of federal prosecution."

The Military Commissions Act of 2006

The Military Commissions Act of 2006 ("MCA") grants the Secretary of Defense express authority to convene military commissions to prosecute those fitting the definition under the MCA of "alien unlawful enemy combatants." The Secretary delegated the authority to a specially appointed "convening authority," who has responsibility for accepting or rejecting charges referred by the prosecution team, convening military commissions for trials, detailing military commission members and other personnel, approving requests from trial counsel to communicate with the media, approving requests for expert witnesses, approving plea agreements, carrying out post-trial reviews and forwarding cases for review, along with other duties spelled out in the MCA or in DOD's Regulation for Trial by Military Commission.

The MCA eliminates the requirement for military commissions to conform to either of the two uniformity requirements in article 36, UCMJ, which President Bush's military commissions were held in Hamdan to violate. Instead, it establishes chapter 47A in title 10, U.S. Code and excepts military commissions under this chapter from the requirements in article 36. It provides that the UCMJ "does not, by its terms, apply to trial by military commissions except as specifically provided in this chapter." While declaring that the enacted chapter is "based upon the procedures for trial by general courts-martial under [the UCMJ]," it establishes that "[t]he judicial construction and application of [the UCMJ] are not binding on military commissions established under this chapter." It expressly exempts these 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 except military commissions under chapter 47A. Other provisions of the UCMJ are to apply to trial by military commissions under chapter 47A only to the extent provided therein.

Jurisdiction

The MCA establishes jurisdiction for military commissions somewhat more narrowly than that asserted in President Bush's M.O. The M.O. was initially criticized by some as overly broad in its assertion of jurisdiction, because it could be interpreted to cover non-citizens who had no connection with Al Qaeda or the terrorist attacks of September 11, 2001, as well as offenders or offenses not triable by military commission pursuant to statute or the law of war. A person designated by the President as 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." The MCA largely validated the President's jurisdictional scheme for military commissions.

Personal Jurisdiction

The MCA authorizes military commissions to try any "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 of Defense.

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 their detention is not expressly precluded.

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 before military tribunals 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 Quirin for unlawful belligerents, to the extent such persons enjoy constitutional protections, would likely raise significant constitutional questions. To date, no resident aliens have been charged for trial before a military commission under the MCA.

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. The CSRTs, however, are not empowered to determine whether the enemy combatants are unlawful or lawful, which led two military commission judges to hold that CSRT determinations are inadequate to form the basis for the jurisdiction of military commissions. 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. The Court of Military Commission Review (CMCR) reversed. While it agreed that the CSRT determinations are insufficient by themselves to establish jurisdiction, it found the military judge erred in declaring that the status determination had to be made by a competent tribunal other than the military commission itself.

In denying the government's request to find that CSRT determinations are sufficient to establish jurisdiction over the accused, the CMCR interpreted the MCA to require more than establishing membership in Al Qaeda or the Taliban. The CMCR found:

no support for [the government's] claim that Congress, through the M.C.A., created a "comprehensive system" which sought to embrace and adopt all prior C.S.R.T. determinations that resulted in "enemy combatant" status assignments, and summarily turn those designations into findings that persons so labeled could also properly be considered "unlawful enemy combatants." Similarly, we find no support for [the government's] position regarding the parenthetical language contained in § 948a(1)(A)(i) of the M.C.A.—"including a person who is part of the Taliban, al Qaeda, or associated forces." We do not read this language as declaring that a member of the Taliban, al Qaeda, or associated forces is per se an "unlawful enemy combatant" for purposes of exercising criminal jurisdiction before a military commission. We read the parenthetical comment as simply elaborating upon the sentence immediately preceding it. That is, that a member of the Taliban, al Qaeda, or associated forces who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents will also qualify as an "unlawful enemy combatant" under the M.C.A. (emphasis added [by the court]).

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 military commissions.

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."

As a consequence of the decision, the prosecution has had the burden of proving jurisdiction over each person charged for trial by a military commission. The Manual for Military Commissions was amended in May 2009 to reflect this practice.

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...." 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)), attempts (§ 950t), and solicitation (§ 950u) to commit the defined acts are also punishable.

The MCA adopted the list of offenses DOD had authorized for trial by military commission under the presidential order . That list was not meant to be exhaustive. Rather, it was intended as an illustration of acts punishable under the law of war or triable by military commissions. The regulations contained an express prohibition of trials for ex post facto crimes.

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, 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 commit hostile acts that result in the death of any persons, including lawful combatants, may also be new, depending on how it is interpreted. The Department of Defense has argued that the element "in violation of the law of war" is established by showing that the perpetrator is an unprivileged belligerent. 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 murder constitutes a violation of the law of war (rather than domestic or martial law), or 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 protected persons, but have implied that the killing of a combatant is not necessarily a war crime. Thus, prison guards at Omarska and other detention camps were found guilty, among other crimes, of "murder, as a violation of the laws or customs of war." Similarly, the International Criminal Court applies a definition of murder in the context of a non-international armed conflict to require that the victim is a protected person, while the killing (or wounding) of a "combatant adversary" is defined as a war crime only if it is done "treacherously."

While one of the Guantanamo military commission judges found, without elaborating on what "murder in violation of the law of war" entails, that Congress could reasonably conclude that it constitutes a common law violation of the law of war, another read the crime to consist of two elements: "the [attempted] killings ...were committed by an unlawful enemy combatant AND (2) that the method, manner or circumstances used violated the law of war." There is historical support for the view that the offense pertains to means and methods of killing, but the requirement that the offender be an "unlawful combatant" is not well supported. Military commissions were used during the U.S. Civil War to try the charge of "murder in violation of the law of war," but this charge apparently applied to privileged belligerents who committed murder perfidiously or who killed prisoners of war, while unprivileged belligerents were charged simply with murder. The charge of "murder, in violation of the laws of war" was occasionally brought against Filipino natives during the Philippine Insurrection, generally involving the killing of unarmed civilians or prisoners. However, it is not easy to discern why some cases were charged as "murder" while others had added the phrase "in violation of the laws of war." Sometimes the distinction appears to turn on the status of the victim, while sometimes the determining factor seems to be the status of the perpetrator, or more precisely, the authority under which the hostile act was carried out. Murder qualified by reference to the law of war was charged most frequently against those whose legitimacy as combatants was not challenged. In one case in which insurgents killed U.S. soldiers during a firefight, the conviction for murder in the violation of the laws of war was overturned in part on the basis that "[t]he killing of the deceased soldiers in an engagement with a regular detachment of the public enemy is not murder but a natural consequence incidental to a state of war."

Similarly, defining as a war crime the "material support for terrorism" does not appear to be supported by historical precedent. The military judge in the Hamdan military commission case deferred to Congress's determination in the MCA that "material support for terrorism" describes a traditional offense against the law of war, citing Civil War precedents for trying crimes such as cooperating with guerrillas or "guerrilla-marauders." Yet the Supreme Court's decision in Ex parte Milligan may have limited the extent to which such crimes may be tried by military commissions where martial law has not been established, and may also call into question whether such crimes are properly considered war crimes or should be treated as ordinary crimes triable by military commissions when necessity demands it. Charges related to aiding guerrillas were typically accompanied by a specification stating that the accused was a citizen and owed allegiance to the United States, but not ordinarily stating that the activity violated the law of war, suggesting that the offense was a violation of martial law rather than the international law of war applicable to belligerents.

Many persons were tried by military commissions during the Philippine Insurrection for consorting with insurgents or other armed outlaws, but only after the commanding general issued a proclamation to the public explaining its obligation under the law of military occupation (a subset of the law of war analogous to martial law) to refrain from such activity. In any event, the Obama Administration has expressed misgivings as to whether the crime of "material support for terrorism" amounts to an ex post facto law, and recommended the offense be eliminated from the MCA. All but one of the detainees against whom charges have been filed so far have had at least one count of "material support for terrorism" among them, although in most cases the allegations underlying the charge appear under other charges as well.

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 DOD regulations for military commissions prior to the MCA. 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," were altered to remove the element that required that the victim was in the custody or control of the accused. 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. It traditionally has not been applied to conduct occurring on the territory of neutral states or on territory not under the control of a belligerent, to conduct that preceded the outbreak of hostilities, or to conduct during hostilities that do not amount to an armed conflict. Unlike the conflict in Afghanistan, the conflict related to the September 11 attacks does not have clear boundaries in time or space, nor is it entirely clear who the belligerents are.

The broad reach of President Bush's M.O. to encompass conduct and persons customarily subject to ordinary criminal law evoked criticism that the claimed jurisdiction of the military commissions exceeded the customary law of armed conflict, although DOD regulation purported to restate customary law. The MCA provides jurisdiction to military commissions over covered offenses "when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001." The elements of crimes set forth in the Manual for Military Commissions 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 conflict authorized by Congress in 2001, but it 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. In 2008, the military judge in the Hamdan case concluded as much, holding that a charge of "[m]embership in a conspiracy that planned and carried out the attacks of September 11 th , 2001 will be deemed to be in violation of the law of war; membership in a conspiracy that planned or carried out other attacks long before that date and unrelated to hostilities will not."

Composition and Powers

The DOD regulations for military commissions prior to the MCA 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, 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. The presiding officer was required to be a judge advocate in any of the U.S. armed forces, but not necessarily a military judge.

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. 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.

Like the previous DOD rules, the MCA empowers military commissions to maintain decorum during proceedings. Previously, the presiding officer was authorized "to act upon any contempt or breach of Commission rules and procedures," including disciplining any individual who violates any "laws, rules, regulations, or other orders" applicable to the commission, as the presiding officer saw fit. Presumably this power was to include not only military and civilian attorneys but also any witnesses who had been summoned under order of the Secretary of Defense. 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. expressly provides for jurisdiction over all persons, including civilians, and permits military judges to sentence those convicted with both fines and terms of confinement. In the case of military commissions established under the UCMJ, there is statutory authority for military commissions to punish contempt with a fine of $100, confinement for up to 30 days, or both. Neither the MCA nor the M.M.C. sets any 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." However, rather than providing that the trial counsel and the defense are to have equal opportunity to obtain witnesses and evidence, as is the case in general courts-martial, the MCA provides the defense a "reasonable opportunity" to obtain witnesses and evidence. 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.

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. Presumably, this article could be used to prosecute civilians residing in U.S. territory who refuse to comply with a subpoena issued under the MCA. The M.M.C. provides the military judge or any person designated to take evidence authority to issue a subpoena to compel the presence of a witness or the production of documents. As is the case with general courts-martial, the military judge may issue a warrant of attachment to compel the presence of a witness who refuses to comply with a subpoena. Subpoena authority under the UCMJ may not be used to compel a civilian witness to travel abroad in order to provide testimony, so the corresponding authority under the MCA be insufficient to compel civilian witnesses to travel to Cuba. Testimony by video transmission may be permitted in such cases.

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 in Hamdan v. Rumsfed that the concentration of authority in the Appointing Authority was a significant departure from the structural safeguards Congress has built into the military justice system.

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 [UCMJ]."

On the other hand, it has been argued that the multiple roles assigned to the convening authority, the DOD official who decides which charges to bring, allocates resources among the parties, and then approves or disapproves the findings of the military commission, create an inherent risk of unfairness (or the perception of unfairness). While the convening authority for courts-martial also plays multiple roles, these functions serve as commanders' tools for enforcing discipline among subordinates, a context that arguably differs in important ways from bringing criminal cases against alleged enemies. Improper influence by the legal advisor to the convening authority has been alleged at a few military commission proceedings, prompting military judges to issue orders in some cases granting relief. Executive branch control over who serves as military judges has also led to charges of unfairness.

Procedures Accorded the Accused

The MCA lists a minimum set of rights to be afforded the accused in any trial, and provides the accused an opportunity to appeal adverse verdicts 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 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. The accused is to be presumed innocent until determined to be guilty. The presumption of innocence and the right against self-incrimination are to result in an entered plea of "Not Guilty" if the accused refuses to enter a plea or enters a "Guilty" plea that is determined to be involuntary or ill informed. 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.

Open Hearing

Because the public, and not just the accused, has a constitutionally protected interest in public trials, the extent to which trials by military commission are open to the press and public may be subject to challenge by media representatives. The First Amendment right of public access extends to trials by court-martial, but is not absolute. It does not impose on the government a duty "to accord the press special access to information not shared by members of the public generally." The reporters' right to gather information does not include an absolute right to gain access to areas not open to the public. In general, trials may be closed only where the following test is met: the party seeking closure demonstrates an overriding interest that is likely to be prejudiced; the closure is narrowly tailored to protect that interest; the trial court has considered reasonable alternatives to closure; and the trial court makes adequate findings to support the closure.

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. 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.

Another method military judges have adopted to protect classified information is to employ a time-delay on the audio feed of the proceedings to the public in the gallery in order to permit the judge or other authorized person to turn off the audio in the event classified information has been or is about to be disclosed. The measure was said to be necessary because the statements of the accused are presumptively classified. If the switch is activated, the judge was to order a halt to the proceedings to evaluate the nature of the information or to permit the prosecution to assert a national security privilege.

Right to be Present

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. Under the DOD rules for military commissions prior to the MCA, the accused or the accused's civilian attorney could be precluded from attending portions of the trial for reasons involving national security, but a detailed 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 only upon a determination that the accused persists in disruptive or dangerous conduct. However, the accused may be excluded from in camera considerations regarding classified information. The accused may not waive the right to be present at his trial, but may forfeit it through disruptive behavior or refusal to attend proceedings.

Right to Counsel

As is the case in military courts-martial, an accused before a military commission under the MCA has the right to have military counsel assigned free of charge. The right to counsel attaches much earlier in the regular military justice system, where the accused has a right to request an attorney prior to being interrogated about conduct relating to the charges contemplated. Under the MCA, at least one qualifying military defense counsel is to be detailed "as soon as practicable after the swearing of charges…." 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. Unlike the DOD rules, the MCA provides that the accused has the right to self-representation.

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. The MCA does not expressly provide the accused an opportunity to request a specific JAG officer to act as counsel. However, under the DOD regulations, the accused may request a specific military attorney from the defense team at the beginning of the proceedings, and may request a replacement counsel from the Chief Defense Counsel if he believes his detailed counsel has been ineffective or if he is otherwise materially dissatisfied with his assigned counsel. If the accused retains the services of a civilian attorney, the MCA provides that military defense counsel is to act as associate counsel. The M.M.C. provides that, in the event the accused elects to represent himself, the detailed counsel shall serve as "standby counsel," and the military judge may require that such defense counsel remain present during proceedings.

The MCA requires civilian attorneys defending an accused before military commission to meet the same strict qualifications that applied under DOD rules. A civilian attorney must be a U.S. citizen with at least a SECRET clearance with membership in any state or territorial bar and no disciplinary record. The MCA does not set forth in any detail what rules might be established to govern the conduct of civilian counsel. 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." Alternatively, the Chief Defense Counsel may refer the matter to either the convening authority or the DOD Deputy General Counsel (Personnel and Health Policy), who may revoke or suspend the qualification of any member of the civilian defense counsel pool.

The MCA does not address the monitoring of communications between the accused and his attorney, and does not provide for an attorney-client privilege. Rule 502 of the Military Commission Rules of Evidence (Mil. Comm. R. Evid.) provides for substantially the same lawyer-client privilege that applies in courts-martial. 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. 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." The required agreement under the present regulations imposes a similar duty to inform, but does not mention monitoring of communications.

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." The Supreme Court has held that "[t]he central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." In courts-martial, the Military Rules of Evidence (Mil. R. Evid.) 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]." Relevant evidence is excluded if its probative value is outweighed by other factors. 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, with some allowance for protecting non-relevant classified information.

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."

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." It is not clear what evidence might be excluded from this requirement as irrelevant to the issues of guilt, innocence, or appropriate punishment. A possible 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.

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. It does not guarantee the defense equal opportunity with the prosecution to obtain such evidence, as is the case at general courts-martial. Unlike the previous DOD rules in 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. However, as noted above, the accused is entitled to examine and respond to evidence relevant to establishing culpability. The MCA provides that the accused is entitled to exculpatory information known to the prosecution, with procedures permitting some variance for security concerns.

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 describing the evidence. However, where M.C.O. No. 1 permitted the withholding of any "Protected Information," 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. The military judge may authorize the government to delete specified portions of evidence to be made available to the accused, or may allow an unclassified summary or statement setting forth the facts the evidence would tend to prove, to the extent practicable in accordance with the rules used at general courts-martial. 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 be required to disclose in a general court-martial ), 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. 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.

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. 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.

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." 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 dismiss charges, or at least those charges or specifications to which the evidence relates, with or without prejudice.

Admissibility of Evidence

Evidence is admissible at military commissions under the MCA if it is deemed to have "probative value to a reasonable person." The Secretary of Defense is permitted to provide by regulation 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," and has done so.

Coerced Statements

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. Initially, statements introduced by any party that were allegedly produced by lesser forms of coercion, where the degree of coercion is disputed, could only be introduced after the military judge made the appropriate findings according to the above formula. With changes to the regulations made in May, 2009, however, the military judge will be required to preclude any evidence elicited through cruel, inhuman or degrading treatment, without regard to when the statement was made. 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. 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.

Mil. Comm. R. Evid. 304 is modeled on Mil. R. Evid. 304, which prescribes rules for courts-martial to provide for the admission into evidence of confessions and admissions (self-incriminating statements not amounting to an admission of guilt). Under court-martial rules, such a statement and any evidence derived as a result of such a statement are admissible only if the statement was made voluntarily. Involuntary statements are those elicited through coercion or other means in violation of constitutional due process. To be used as evidence of guilt against the accused at court martial, a confession or admission must be corroborated by independent evidence. There is no requirement for corroboration of such statements at military commissions; however, the military judge may take the existence of corroborating evidence into consideration in determining the probative value and reliability of the statement.

In one case before a military commission, the military judge ordered a detainee's statements to Afghan officials at the time of his capture suppressed on the basis of death threats against the detainee as well as his family. Such treatment is regarded as torture under the Military Commission Rules of Evidence. Further, the military judge ruled that statements subsequently made by the accused to U.S. interrogators likewise were required to be suppressed because they were taken under circumstances that did not sufficiently dissipate the coercive effect of the earlier threats. The government sought to appeal the latter ruling, but has since dropped the charges against the detainee after he prevailed in his habeas petition.

Hearsay

Hearsay evidence is an out-of-court statement, whether oral, written, or conveyed through non-verbal conduct, introduced into evidence to prove the truth of the matter asserted. M.C.O. No. 1 did not exclude hearsay evidence. The MCA allows for the admission of hearsay evidence that would not be permitted under the Manual for Courts-Martial only if the proponent of the evidence notifies the adverse party sufficiently in advance of trial of the intention to offer the evidence, as well as the "particulars of the evidence (including [unclassified] information on the general circumstances under which the evidence was obtained)." Originally, the evidence was to be inadmissible only if the party opposing its admission "clearly demonstrates that the evidence is unreliable or lacking in probative value." The May, 2009 changes to the regulations reverse the burden of demonstrating reliability to the proponent of the evidence.

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 not admissible except as permitted by a lengthy set of exceptions, 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. R. 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." Hearsay evidence is admissible only if the proponent demonstrates by a preponderance of the evidence that such hearsay is reliable under the totality of the circumstances.

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. 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 privileged 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" 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. 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," 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." 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. In the event the defense reasonably expects to disclose classified information at trial, defense counsel must notify the trial counsel and the judge, and is precluded from disclosing information known or believed to be classified until the government has had a reasonable opportunity to move for an in camera determination as to protective measures. Mil. Comm. R. Evid. 505 is modeled after the corresponding rule that applies in general courts-martial, which in turn are modeled after the procedures that apply in federal criminal court, the Classified Information Procedures Act.

Sentencing

The MCA provides that military commissions may adjudge "any punishment not forbidden by [it or the UCMJ], including the penalty of death…." 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." 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-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, and the charges referred to the commission must have expressly sought the penalty of death. The death sentence may not be executed until the commission proceedings have been finally adjudged lawful and all appeals are exhausted, and after the President approves the sentence. The President is permitted to "commute, remit, or suspend [a death] sentence, or any part thereof, as he sees fit." For sentences other than death, the Secretary of the Defense or the convening authority are permitted to adjust the sentence downward.

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." 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.

The death penalty may only be adjudged if expressly authorized for the offense listed or if it is authorized under the law of war; and all twelve members of the commission voted to convict the accused; and found that at least one of the listed aggravating factors exists, agreed that such factors outweigh any extenuating or mitigating circumstances, and voted to impose the death penalty. Aggravating factors include that "the 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. 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

Subchapter VI of the MCA prescribes post-trial procedure and appeals, similar to procedures DOD had implemented. It provides for an administrative review of the trial record by the convening authority followed by a review panel.

Review and Appeal

The MCA codified the establishment of the review body set up under the previous DOD rules for military commissions. The Court of Military Commission Review (CMCR) is comprised of appellate military judges who meet the same qualifications as military judges or comparable qualifications for civilian judges. The accused may appeal a final decision of the military commission with respect to issues of law to the CMCR. Like the UCMJ, the MCA prohibits the invalidation of a verdict or sentence due to an error of law unless the error materially prejudices the substantial rights of the accused. If the CMCR approves the verdict, the accused may appeal the final decision to the United States Court of Appeals for the District of Columbia Circuit. Appellate court decisions may be reviewed by the Supreme Court under writ of certiorari.

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. Sessions without members may be ordered to reconsider any trial ruling that substantially affects the legal sufficiency of any findings of guilt or the sentence.

Once the record is authenticated and forwarded to the convening authority, the accused is permitted, within 20 days unless additional time is approved, to submit matters relevant to whether to approve the sentence or disapprove findings of guilt. 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. 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. 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.

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. 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.

In all cases in which the convening authority approves a finding of guilty, the record is forwarded to the CMCR, unless the accused (where the sentence does not include death) waives review. No relief may be granted by the CMCR unless an error of law prejudiced a substantial trial right of the accused. The accused has 20 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.

Protection Against Double Jeopardy

Prior to the MCA, DOD regulations for military commissions provided that the accused could not be tried for the same charge twice by any military commission once the commission's finding on that charge became final (meaning once the verdict and sentence had been approved). However, the regulations appeared to permit revisions of a verdict prior to its becoming final in ways that might have resulted in double jeopardy.

The MCA provides that "[n]o person may, without his consent, be tried by a military commission under this chapter a second time for the 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 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. 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. 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.

The inadequacy of an indictment in specifying charges could raise double jeopardy concerns. If the charge does not adequately describe the offense, another trial for the same offense under a new description is not as easily prevented. The MCA requires that charges and specifications be signed under oath by a person with personal knowledge or reason to believe that matters set forth therein are true, and requires that they be served on the accused written in a language he understands. 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. A specification must allege every element of the charged offense expressly or by necessary implication. 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. After the accused is arraigned, the military judge may permit minor changes in the charges and specifications before findings are announced if no substantial right of the accused is prejudiced, but no major changes may be made over the objection of the accused without a new referral.

President Bush's 2001 Military Order also left open the possibility that a person subject to the order might be transferred at any time to some other governmental authority for trial, or that a person already charged for crimes in federal courts could be made subject to the Order and transferred for trial by military commission. Double jeopardy might have arisen in either event, depending on whether jeopardy had attached prior to transfer, even if the trial did not result in a final verdict. The MCA does not expressly address such transfers or prohibit trial in another forum. The Rules for Military Commissions, however, provide the accused a waivable right to move to dismiss charges on the basis that he has previously been tried by a federal civilian court for the same offense.

Proposed Legislation

One bill has been introduced in the 111 th Congress to amend the MCA. For additional legislation pertaining to detainees and habeas corpus, see CRS Report R40419, Analysis of Selected Legislative Proposals Addressing Guantanamo Detainees , by [author name scrubbed].

Sec. 1031 of the National Defense Authorization Act for FY2010 ("NDAA FY2010"), S. 1390 , 111 th Cong, 1 st Sess. (2009), (as passed by the Senate), would replace chapter 47a of title 10, U.S. Code, as enacted by the MCA 2006. Some key differences between § 1031 of S. 1390 and the MCA 2006 include:

Military commissions would have jurisdiction over "alien unprivileged enemy belligerents," defined somewhat differently from "alien unlawful enemy combatants" in the current law. The definition eliminates references to Al Qaeda and the Taliban. Military commissions would have express authority to determine their own jurisdiction. While MCA offenses remain substantially unchanged, the amendment requires that offenses occurred "in the context of and associated with armed conflict." Crimes that occurred prior to enactment of the bill would be prosecutable only to the extent that they are codifications of crimes traditionally triable by military commissions. (The MCA currently declares all covered offenses to be codifications of existing crimes). Confessions allegedly elicited through cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. § 2000dd) would be inadmissible, regardless of when the statement was made. The MCA bars the use of such confessions only if they were made after the enactment of section 1003. (This change codifies an amendment to the Manual for Military Commission already made under the Obama Administration). In the case of hearsay evidence, the party offering the evidence would have the burden of demonstrating that it is reliable, whereas under current law, the opponent has the burden of proving that it is unreliable. (This change also codifies an amendment to regulations already made under the Obama Administration). The Court of Appeals of the Armed Services (CAAF) rather than the Court of Military Commission Review would serve as the exclusive appellate court. All trials that produce a guilty verdict would be referred automatically for review by the CAAF, unless waived where permitted. The CAAF's scope of review would include questions of fact as well as law, and the CAAF would have the authority to order charges dismissed. The Court of Appeals for the D.C. Circuit would have no appellate role. The Supreme Court would retain discretionary jurisdiction through writ of certiorari. The obligation to disclose exculpatory information would include mitigating evidence, and the obligation would extend to all information that is known or reasonably should be known to any government officials who participated in the investigation and prosecution of the case. This amendment essentially codifies the rules in the Manual for Military Commissions applicable to discovery, which defines "exculpatory information" to include evidence that tends to reduce the degree of guilt of the accused of an offense charged or reduce the punishment. Further, "evidence known to trial counsel," includes evidence that the prosecution would be required to disclose in a trial by general court-martial, which covers information under the control of the government.

The Obama Administration has proposed some amendments to section 1031 of S. 1390 .

It proposes excluding all involuntarily given statements by the accused, rather than just those obtained through the use of torture or cruel, inhuman, or degrading treatment. The voluntariness standard would entail taking into account the "challenges and realities of the battlefield and armed conflict." It does not propose a requirement that battlefield captives be warned that their statements can be used against them, as is the case in ordinary criminal prosecutions in U.S. courts. The Obama Administration would retain language asserting that offenses are codifications of the common law of war, but would eliminate the material support charge. The Administration supports the Senate proposal for treating hearsay evidence, but would adopt a somewhat different standard as to when the exception should apply, based on whether the hearsay evidence is more probative than other evidence that could be procured through reasonable efforts, rather than strictly on the availability of the witness to testify. The Administration proposes keeping the present appellate structure intact, but modifying the role of the Court of Military Commissions Review to make it more like one of the services Courts of Criminal Appeals, empowering it to address questions of fact as well as law. The Administration would include a five-year sunset provision for the M.C.A.

The following charts 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. Chart 1 compares the legal authorities for establishing military tribunals, the jurisdiction over persons and offenses, and the structures of the tribunals. Chart 2, which compares procedural safeguards incorporated in the MCA to court-martial procedures and to proposed amendments, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts , by [author name scrubbed], 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. For a comparison with previous rules established under President Bush's Military Order, refer to CRS Report RL33688, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice , by [author name scrubbed].

Chart 1. Comparison of Military Commission Rules

Authority

Procedure

Jurisdiction over Persons

Jurisdiction over Offenses

Composition

Chart 2. Comparison of Procedural Safeguards

Presumption of Innocence

Right to Remain Silent (Freedom from Coerced Statements)

Freedom from Unreasonable Searches and Seizures

Effective Assistance of Counsel

Right to Indictment and Presentment

Right to Written Statement of Charges

Right to be Present at Trial

Prohibition Against Ex Post Facto Crimes

Protection Against Double Jeopardy

Speedy and Public Trial

Burden and Standard of Proof

Privilege Against Self-Incrimination (Freedom from Compelled Testimony)

Right to Examine or Have Examined Adverse Witnesses (Hearsay Prohibition)

Right to Compulsory Process to Obtain Witnesses

Right to Trial by Impartial Judge

Right to Trial by Impartial Jury

Right to Appeal to Independent Reviewing Authority

Protection Against Excessive Penalties