The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
Released: 2014-08-04T00:00:00

Introduction

The use of military commissions to try suspected terrorists has been the focus of intense debate (as well as significant litigation) since President Bush in November 2001 issued his original Military Order (M.O.) authorizing such trials. 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 . In response, 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, after finding that Congress's efforts to strip it of jurisdiction did not apply to a case already pending before the Court, Hamdan v. Rumsfeld , invalidated the military commission system established by presidential order. The Court held that although Congress had in general authorized the use of military commissions, such commissions were required to follow procedural rules as similar as possible to courts-martial proceedings, as required by the Uniform Code of Military Justice (UCMJ). In response, Congress promptly passed the Military Commissions Act of 2006 (MCA 2006) to authorize military commissions and establish procedural rules that were modeled after, but departed from in some significant ways, the UCMJ. The MCA 2006 also amended the Detainee Treatment Act in order to strip the judiciary of habeas jurisdiction in all cases brought by detainees, including pending cases, but the Supreme Court held that provision to be an unconstitutional suspension of the Writ of Habeas Corpus.

President Bush reconstituted the military commissions under the MCA 2006 by issuing Executive Order 13425. The Department of Defense (DOD) issued regulations for the conduct of military commissions pursuant to the MCA 2006 and restarted the military commission proceedings, which resulted in three convictions under the Bush Administration. One detainee, David Matthew Hicks of Australia, was convicted of material support to terrorism pursuant to a plea agreement in 2007. 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. Both men are now free from detention. Ali Hamza Ahmad Suliman al Bahlul of Yemen was found guilty of multiple counts of conspiracy and solicitation to commit certain war crimes and of providing material support for terrorism in connection with his role as Al Qaeda's "propaganda chief." He refused representation and boycotted most of his trial, and was subsequently sentenced to life imprisonment. The latter two convictions were reversed on appeal by the U.S. Court of Appeals for the D.C. Circuit. The government sought and was granted a rehearing en banc in the Bahlul case to appeal the decisions. On rehearing, the D.C. Circuit invalidated Bahlul's convictions for solicitation and material support for terrorism on ex post facto grounds, but upheld the conspiracy charge, sending it back to the original panel to resolve additional challenges.

No challenge to military commissions under the MCA 2006 reached the Supreme Court. President Obama halted the proceedings upon taking office in January 2009 in order to review whether to continue their use. The President issued an Executive Order requiring that the Guantánamo detention facility be closed no later than a year from the date of the Order. The Order required specified officials to review all Guantánamo detentions to assess whether the detainee should continue to be held by the United States, transferred or released to another country, or be prosecuted by the United States for criminal offenses. The Secretary of Defense was also required to take steps to ensure that all proceedings before military commissions and the United States Court of Military Commission Review were halted, although some pretrial proceedings continued to take place. One case was moved to a federal district court.

In May 2009, the Obama Administration announced that it was considering restarting the military commission system with some changes to the procedural rules. DOD informed Congress about modifications to the Manual for Military Commissions, to take effect July 14, 2009. The Senate passed the Military Commissions Act of 2009 (MCA 2009) as part of the Department of Defense Authorization Act (NDAA) for FY2010, S. 1391 , to provide some reforms the Administration supported and to make other amendments to the Military Commissions Act, as described below. The bill that emerged from conference ( H.R. 2647 ) contained some, but not all, of the proposals submitted by the Obama Administration, and was enacted October 28, 2009, P.L. 111-84 .

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

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

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

On November 13, 2009, Attorney General Holder announced his decision to transfer the five "9/11 conspirators," who include Khalid Sheikh Mohammed, Walid Muhammed Salih Mubarak Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi, to the Southern District of New York to stand trial. Five other detainees to be tried by military commission included Omar Khadr, a Canadian citizen captured as a teenager and charged before a military commission for allegedly throwing a hand grenade that killed a U.S. soldier in Afghanistan; Abd al-Rahim al-Nashiri, whose military commission charges related to the October 2000 attack on the USS Cole were previously withdrawn in February 2009; Ahmed Mohammed Ahmed Haza al Darbi, accused of participating in an Al Qaeda plot to blow up oil tankers in the Straits of Hormuz; and two other detainees about whom no further information was given.

As the deadline for closing the detention facility at Guantánamo passed unmet, the Obama Administration reportedly completed its assessment, determining that about 50 of the detainees held there would continue to be held without trial, that around 40 detainees would be prosecuted in military commission or federal court, and that the remaining 110 detainees would be released once a suitable country has agreed to take each of them. However, the transfer of 30 detainees of Yemeni nationality was stymied because an Al Qaeda affiliate in Yemen is suspected to have been behind attempt to blow up a civilian airliner on Christmas Day 2009.

Military Commissions

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 during periods 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, 1846-1848, the Civil War, the Philippine Insurrection of 1899-1902, and in occupied Germany and Japan after World War II.

President Bush's Military Order setting up military commissions appeared to have been designed to replicate a pair of military commission orders issued during World War II by President Roosevelt for the trial of German saboteurs caught within the territory of the United States after having evaded U.S. coastal defenses. These tribunals were historically a bit anomalous in that they took place in Washington, DC, during a period when the civilian courts were open. A similar practice during the Civil War, which accounted for a small number of the military commission cases, was held unconstitutional. The Supreme Court held essentially in Ex parte Milligan that military trials of persons who had never been members of the Armed Forces of the United States could never be valid on friendly territory where martial law has not been declared and civilian courts are functioning. However, the Supreme Court upheld the F.D.R. tribunals by explaining that the holding in Milligan was limited to cases in which civilians—persons who are not members of the armed forces of an enemy government—were tried by military commission, and did not preclude the government from trying enemy belligerents for violations of the law of war, regardless of the operational status of the civilian courts.

The Bush Administration established rules prescribing detailed procedural safeguards for the tribunals. 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 may continue to detain persons who have been found not guilty 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.

The Military Commissions Act ("MCA") grants the Secretary of Defense express authority to convene military commissions to prosecute those fitting the definition under the MCA of "alien unprivileged enemy belligerents." 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], while instructive, is therefore not of its own force binding on military commissions established under this chapter." It expressly exempts these military commissions from UCMJ articles 10 (speedy trial), 31 (self-incrimination warnings), and 32 (pretrial investigations), and the MCA 2006 amended 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 President Bush as subject to his M.O. was amenable to detention and possible trial by military tribunal for violations of the law of war and "other applicable law." The MCA 2006 largely validated President Bush's jurisdictional scheme for military commissions.

Jurisdiction over the Offender

The MCA, as amended in 2009, authorizes military commissions to try any "alien unprivileged enemy belligerent," which includes an individual (other than a privileged belligerent) who:

(A) has engaged in hostilities against the United States or its coalition partners;

(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or

(C) was a part of Al Qaeda at the time of the alleged offense under [chapter 47A of Title 10, U.S. Code ].

Thus, persons who do not directly participate in hostilities, but "purposefully and materially" support hostilities, are subject to trial under the MCA. Citizens who fit the definition of "unprivileged enemy belligerent" are not amenable to trial by military commission under the MCA, but their detention is not expressly precluded.

The MCA, as amended, defines "hostilities" to mean any conflict "subject to the laws of war." It does not explain what conduct amounts to "supporting hostilities." To the extent that the jurisdiction is interpreted to include conduct that falls outside the accepted definition of participation in an armed conflict, the MCA might run afoul of the courts' historical aversion to trying civilians before military tribunals when other courts are available. It is unclear whether this principle would apply to aliens captured and detained overseas, but the MCA does not appear to exempt from military jurisdiction permanent resident aliens captured in the United States who might otherwise meet the definition of "unprivileged enemy belligerent." It is generally accepted that aliens within the United States are entitled to the same protections in criminal trials that apply to U.S. citizens. Therefore, to subject persons to trial by military commission who do not meet the exception carved out by the Supreme Court in ex parte 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.

As originally enacted, the MCA 2006 did not specifically identify who was to make the determination that defendants met the definition of "unlawful enemy combatant." The government sought to establish jurisdiction based on the determinations of Combatant Status Review Tribunals (CSRTs), set up by the Pentagon to determine the status of detainees using procedures similar to those the Army uses to determine POW status during traditional wars. The CSRTs, however, were not empowered to determine whether the enemy combatants are unlawful or lawful, which led two military commission judges to hold that CSRT determinations are inadequate to form the basis for the jurisdiction of military commissions. 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]).

As a consequence of the decision, the prosecution has the burden of proving jurisdiction over each person charged for trial by a military commission. The Manual for Military Commissions was amended in May 2009 to reflect this practice, and the 2009 MCA amended 10 U.S.C. Section 948d to task the military commission with establishing its own jurisdiction. Under the amended language, membership in Al Qaeda (but not the Taliban) appears sufficient to establish jurisdiction, regardless of whether the defendant participated in or even supported hostilities, although the defendant must generally be alleged to have committed one of the listed crimes "in the context of and associated with hostilities."

Subject Matter Jurisdiction

The MCA provides jurisdiction to military commissions to try alien unprivileged belligerents for listed offenses as well as Sections 904 and 906 of Title 10 (aiding the enemy and spying), or the law of war, "whether such offense was committed before, on, or after September 11, 2001." Crimes to be triable by military commission are defined in subchapter VIII (10 U.S.C. §§950p–950t). The MCA defines the following offenses: murder of protected persons; attacking civilians, civilian objects, or protected property; pillaging; denying quarter; taking hostages; employing poison or similar weapons; using protected persons or property as shields; torture, cruel or inhuman treatment; intentionally causing serious bodily injury; mutilating or maiming; murder in violation of the law of war; destruction of property in violation of the law of war; using treachery or perfidy; improperly using a flag of truce or distinctive emblem; intentionally mistreating a dead body; rape; sexual assault or abuse; hijacking or hazarding a vessel or aircraft; terrorism; providing material support for terrorism; wrongfully aiding the enemy; spying; attempts; conspiracy; solicitation; contempt; perjury and obstruction of justice.

The MCA largely adopted the list of offenses DOD had authorized for trial by military commission under the presidential order. 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, some of the listed crimes may be new. For example, a plurality of the Supreme Court in Hamdan agreed that conspiracy is not a war crime under the traditional law of war. The crime of "murder in violation of the law of war," which punishes persons who commit hostile acts that result in the death of any persons, including lawful combatants, may also be new, depending on how it is interpreted. The Department of Defense had argued that the element "in violation of the law of war" is established by showing that the perpetrator is an unprivileged belligerent. The latest version of the Manual for Military Commissions reflects the understanding that the offense may be tried by military commission even if it does not violate the international law of war.

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 has found 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" for causing the deaths of prisoners. 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 Guantánamo military commission judges found, without elaborating on what "murder in violation of the law of war" entails, that Congress could reasonably conclude that it constitutes a common law violation of the law of war, 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 notion that the unlawfulness element may be satisfied by proof that the offender is an "unlawful combatant" is not well supported. Military commissions were used during the U.S. Civil War to try the charge of "murder in violation of the law of war," but this charge apparently applied to privileged belligerents who committed murder perfidiously or who killed prisoners of war, 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, other times the determining factor seems to be the status of the perpetrator or more precisely, the authority under which the hostile act was carried out. Murder qualified by reference to the law of war was charged most frequently against those whose legitimacy as combatants was not challenged. In one case in which insurgents killed U.S. soldiers during a firefight, the 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." The Court of Military Commission Review affirmed, but was overruled by the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit sitting en banc affirmed the conclusion that the material support offense is not a pre-existing war crime, nor one that is traditionally triable by military commission, and invalidated a conviction for it on ex post facto grounds, without deciding whether the Ex Post Facto Clause of the Constitution applies to foreigners held at Guantanamo or whether Congress could prospectively make material support a war crime for conduct committed after enactment of the MCA 2006. The issue could potentially be headed to the Supreme Court.

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. The Obama Administration earlier expressed misgivings as to whether the crime of "material support for terrorism" amounts to an ex post facto law, and recommended the offense be eliminated from the MCA, prior to attempting unsuccessfully to defend convictions for material support at the D.C. Circuit. All but one of the detainees against whom charges had been filed prior to 2011 had at least one count of "material support for terrorism" among them, although in most cases the allegations underlying the charge appeared under other charges as well. Congress chose not to eliminate the material support charge when it amended the MCA in 2009. Newer cases have avoided the charge, although one case appears to charge equivalent conduct as "aiding the enemy" under UCMJ article 904.

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 in all cases who the belligerents are.

The broad reach of President Bush's M.O. to encompass conduct and persons customarily subject to ordinary criminal law evoked criticism that the claimed jurisdiction of the military 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 unprivileged enemy belligerent before, on, or after September 11, 2001." Further, the MCA states that it codifies offenses "that have traditionally been triable by military commission" and establishes no "new crimes that did not exist before [its] enactment"; and that therefore it "does not preclude trial for offenses that occurred before the date of the enactment of this subchapter, as so amended." Whether, in fact, the offenses were established under the law of war prior to the enactment of the MCA has already been the subject of two successful challenges by defendants.

In enacting the MCA, Congress seems to have provided the necessary statutory definitions of criminal offenses to overcome previous objections with respect to subject matter jurisdiction of military commissions. However, questions may still arise with respect to the necessity for conduct to occur in the context of hostilities in order to be triable by military commission. In 2008, the military judge in the Hamdan case concluded that a nexus with hostilities was required, holding that a charge of "[m]embership in a conspiracy that planned and carried out the attacks of September 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 MCA provides for a qualified military judge to preside over panels of at least 5 military officers, except in the cases in which the death penalty is sought, in which case panels are to consist of 12 members unless that number are not reasonably available, in which case the minimum is 9 panel members. Procedures for assigning military judges as well as the particulars regarding the duties they are to perform are left to the Secretary of Defense to prescribe, except that the military judge may not be permitted to consult with members of the panel outside of the presence of the accused and counsel except as prescribed in 10 U.S.C. Section 949d. The military judge has the authority to decide matters related to the admissibility of evidence, including the treatment of classified information, but has no authority to compel the government to produce classified information.

The MCA empowers military commissions to maintain decorum during proceedings. Previously, under the DOD rules prior to enactment of the 2006 MCA, the presiding officer was authorized "to act upon any contempt or breach of Commission rules and procedures," including disciplining any individual who violates any "laws, rules, regulations, or other orders" applicable to the commission, as the presiding officer saw fit. Presumably this power was to include not only military and civilian attorneys but also any witnesses who had been summoned under order of the Secretary of Defense. The MCA, 10 U.S.C. §950t, authorizes the military commissions to "punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder." It is unclear whether this section is meant to expand the jurisdiction of military commissions to cover non-enemy unprivileged belligerent witnesses or civilian observers, but the M.M.C. expressly provides for jurisdiction over all persons, including civilians, and permits military judges to sentence those convicted with both fines and terms of confinement. 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. Although the MCA does not set limits on punishment for contempt, the M.M.C. 2012 limits confinement to 30 days and fines to $1000.

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 (prosecution) and the defense are to have equal opportunity to obtain witnesses and evidence, as is the case in general courts-martial, the MCA provides the defense a "reasonable opportunity" to obtain witnesses and evidence, in a manner comparable "to the opportunity available to a criminal defendant" in an article III court. The M.M.C. provides the trial counsel with responsibility for producing witnesses requested by the defense, unless trial counsel determines the witness's testimony is not required or is protected, but the defense counsel may appeal the determination to the convening authority or, after referral, the military judge.

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 may 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 President Bush's M.O. had to do with the problem of command influence over commission personnel. M.C.O. No. 1 provided for a "full and fair trial," but contained few specific safeguards to address the issue of impartiality. The President or his designee were empowered to decide which charges to press; to select the members of the panel, the prosecution and the defense counsel, and the members of the review panel; and to approve and implement the final outcome. The President or his designees had the authority to write procedural rules, interpret them, enforce them, and amend them. Justice Kennedy remarked in his concurring opinion in Hamdan v. Rumsfed that the concentration of authority in the Appointing Authority was a significant departure from the structural safeguards Congress has built into the military justice system.

The MCA, by providing requirements for the procedural rules to guard against command influence, may alleviate some of these concerns. In particular, the MCA prohibits the unlawful influence of military commissions and provides that neither the military commission members nor military counsel may have adverse actions taken against them in performance reviews. Many of the procedural rules are left to the discretion of the Secretary of Defense or his designee, more so than is the case under the UCMJ. Rule 104 of the Rules for Military Commissions (R.M.C.) prohibits command influence in terms similar to those in the Manual for Courts-Martial, except that they apply more broadly to "all persons" rather than only to "all persons subject to the [UCMJ]."

On the other hand, it has been argued that the multiple roles assigned to the convening authority, that is, the DOD official who decides which charges to bring, allocates resources among the parties, and then approves or disapproves the findings of the military commission, create an inherent risk of unfairness (or the perception of unfairness). 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 to the United States Court of Appeals for the District of Columbia Circuit, but only "with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the United States Court of Military Commission Review." The circuit court is empowered to take action "only with respect to matters of law, including the sufficiency of the evidence to support the verdict." 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 commission judge may close portions of a trial only to protect information from disclosure where such disclosure could reasonably be expected to cause damage to the national security, such as information about intelligence or law enforcement sources, methods, or activities; or to ensure the physical safety of individuals. The information to be protected from disclosure does not necessarily have to be classified. To the extent that the exclusion of the press and public is based on the discretion of the military judge without consideration of the constitutional requirements relative to the specific exigencies of the case at trial, the procedures may implicate the First Amendment rights of the press and public. The M.M.C. provides, in Rule 806, that the military judge may close proceedings only to protect information designated for such protection by a government agency or to secure the physical safety of individuals. However, the rule also provides that "in order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may reasonably limit the number of spectators in, and the means of access to, the courtroom, and exclude specific persons from the courtroom." Such limitations must be supported by written findings.

One method military judges have adopted to protect classified information without closing a hearing to the public is to employ a time-delay on the audio feed of the proceedings to the public in the gallery in order to permit the judge or other authorized person to turn off the audio in the event classified information has been or is about to be disclosed. The measure was said to be necessary because the statements of the accused are presumptively classified. If the switch is activated, the judge was to order a halt to the proceedings to evaluate the nature of the information or to permit the prosecution to assert a national security privilege.

The MCA of 2009 inserted a new subtitle V to provide procedures for handling classified or sensitive information, including the closure of evidentiary hearings when such information is to be discussed, the sealing of records, and the issuance of protective orders. It states that the trial counsel may "object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be admissible" during testimony. In such circumstances, the military judge is to "take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any classified information," which may leave room for the use of time delay devices as described above, though the measure isn't expressly authorized.

The American Civil Liberties Union (ACLU) and various media groups filed a petition for mandamus with the Court of Military Commission Review (CMCR) challenging the scope of the protective order issued in the case against the five alleged September 11 conspirators on the basis of its perceived inconsistency with the First Amendment. The CMCR denied the writ without deciding whether it had jurisdiction to issue the writ, finding the controversy to be unripe for decision.

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 (assigned) 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 the treatment of 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, than under the MCA. Under the MCA, at least one qualifying military defense counsel is to be detailed "as soon as practicable." The accused may also hire a civilian attorney who meets specific qualifications and agrees to comply with all applicable rules. If civilian counsel is hired, the detailed military counsel serves as associate counsel. Unlike the previous 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 Judge Advocate General (JAG) officer to be assigned as a replacement if available in accordance with any applicable instructions or supplementary regulations that might later be issued. The MCA, as amended, incorporates this measure, providing the accused an opportunity to request a specific JAG officer to act as counsel, if the requested officer is reasonably available. DOD regulations provide that the accused may request a specific military attorney from the defense team at the beginning of the proceedings, and may request a replacement counsel from the Chief Defense Counsel if he believes his detailed counsel has been ineffective or if he is otherwise materially dissatisfied with his assigned counsel. 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 last-issued regulation, the Chief Defense Counsel has the responsibility of determining the eligibility of civilian defense counsel, and may reconsider the determination based on "subsequently discovered information indicating material nondisclosure or misrepresentation in the application, or material violation of obligations of the civilian defense counsel, or other good cause." 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 current regulations imposes a similar duty to inform, but does not mention monitoring of communications. The revelation that the rooms where attorneys are permitted to meet with clients were fitted with hidden listening devices has caused some concern among defense attorneys at military commission proceedings.

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 has the right "to present evidence in [his] defense, to cross-examine the witnesses who testify against [him], and to examine and respond to evidence admitted against [him] on the issue of guilt or innocence and for sentencing." It is not clear what evidence might be excluded from this requirement as irrelevant to the issues of guilt, innocence, or appropriate punishment. It is possible that this provision could be interpreted not to apply to evidence relevant to the credibility of a witness or the authenticity of a document, so that the accused would have no right to examine and respond to such evidence, unless expressly provided elsewhere in the MCA.

Discovery

The MCA provides that defense counsel is to be afforded a reasonable opportunity to obtain witnesses and other evidence, including evidence in the possession of the United States, as specified in regulations prescribed by the Secretary of Defense. It does not guarantee the defense equal opportunity with the prosecution to obtain such evidence, as is the case at general courts-martial. The MCA provides that all of the information admitted into evidence at trial under any rule must be provided to the accused. The accused is also entitled to exculpatory and mitigating information known to the prosecution or investigators, 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 under procedures similar to the Classified Information Procedures Act and the Manual for Courts-Martial. Classified information is privileged and need not be disclosed. Where M.C.O. No. 1 permitted the withholding of any "Protected Information," the MCA permits the government to withhold only information determined by the United States Government pursuant to statute, executive order, or regulation to require protection against unauthorized disclosure for reasons of national security. Further, if the government wishes to withhold any classified information, the trial counsel must submit a declaration, signed by a knowledgeable official with classification authority, invoking the United States' classified information privilege and setting forth the damage to the national security that the discovery of or access to such information reasonably could be expected to cause. The military judge may authorize production of the classified information if she determines that it would be "noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution's case, or to sentencing," in accordance with standards generally applicable in federal criminal cases. Specifically, the military judge may authorize the government to delete specified portions of evidence to be made available to the accused, or may allow an unclassified summary or statement setting forth the facts the evidence would tend to prove, to the extent practicable in accordance with the rules used at general courts-martial. Trial counsel may submit applications for protective measures on an ex parte basis, and the MCA does not provide defense counsel with access to the classified information that serves as the basis for substitute or redacted proffers. The decision to permit a substitution or grant other relief, which is required so long as the military judge determines such relief would "provide the accused with substantially the same ability to make a defense" as would access to the classified information itself, is not subject to a motion for reconsideration, but all of the submitted information and hearing transcripts are sealed and preserved for submission in case of appeal.

Admissibility of Evidence

The Secretary of Defense may prescribe in the rules of evidence that evidence is admissible as authentic if the military judge determines that "there is sufficient evidence that the evidence is what it is claimed to be," and instructs the members that they may consider any issue as to authentication or identification of evidence in determining the weight, if any, to be given to the evidence. The accused is entitled to the exclusion of evidence that is not probative or reliable, or of evidence the probative value of which is substantially outweighed by the "danger of unfair prejudice, confusion of the issues, or misleading the members"; or by "considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Coerced Statements

The MCA prohibits the use of statements obtained through torture as evidence in a trial, except to prove torture where the defendant is accused of committing torture. For information obtained through coercion that does not amount to torture, the MCA 2006 provided a different standard for admissibility depending on whether the statement was obtained prior to or after the enactment of the DTA. Statements elicited through such methods prior to the DTA were admissible if the military judge were to find that the "totality of circumstances under which the statement was made renders it reliable and possessing sufficient probative value" and "the interests of justice would best be served" by admission of the statement. Statements taken after passage of the DTA were admissible if, in addition to the two criteria above, the military judge were to find that "the interrogation methods used to obtain the statement do not violate the cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act."

The MCA 2009 eliminates the distinction above, making statements obtained through cruel, inhuman or degrading methods inadmissible regardless of when they were made. The Obama Administration had already amended the military commission regulations in May 2009 to remove the discrepancy. Otherwise, out-of-court statements by the accused may be admitted if the military judge finds that the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and either that the statement was voluntarily given or that the statement was made "incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence." Voluntariness is to be determined considering the totality of the circumstances, including the following:

(1) The details of the taking of the statement, accounting for the circumstances of the conduct of military and intelligence operations during hostilities.

(2) The characteristics of the accused, such as military training, age, and education level.

(3) The lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused.

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.

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

In one case before a military commission, the military judge ordered a detainee's statements to Afghan officials at the time of his capture suppressed on the basis of death threats against the detainee as well as his family. 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 later 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, and the MCA 2009 reflects the change.

The rules regarding hearsay are provided in Mil. Comm. R. Evid. 801 to 807. In contrast to the relatively restrictive rule applied in courts-martial, where hearsay is not admissible except as permitted by a lengthy set of exceptions, the military commission rules provide that hearsay is admissible on the same basis as any other form of evidence except as provided by these rules or an act of Congress, perhaps creating a presumption of admissibility for hearsay evidence in military commissions. Mil. Comm. R. Evid. 803 provides that hearsay may be admitted if it would be admissible under the rules applicable at courts-martial. Otherwise, hearsay is admissible only if the party proffering it notifies the adverse party with sufficient time in advance of trial or hearing of its intent to offer such evidence and provides any materials in its possession regarding the time, place, and conditions under which the statement was procured; and the military judge finds, considering the relevant circumstances, that

(A) the statement is offered as evidence of a material fact;

(B) the statement is probative for which it is offered;

(C) direct testimony from the witness is not available as a practical matter, taking into consideration the physical location of the witness, the unique circumstances of military and intelligence operations during hostilities, and the adverse impacts on military or intelligence operations that would likely result from the production of the witnesses; and

(D) the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.

Under the previous rules, hearsay evidence was inadmissible if the opponent demonstrated by a preponderance of the evidence that such hearsay was unreliable under the totality of the circumstances. The current rules do not expressly allocate the burden of proof as to reliability of hearsay evidence. Presumably it falls on the proponent of the evidence.

Classified Evidence

The MCA 2009 adopted rules for the protection of classified information that are similar to the Classified Information Procedures Act (CIPA), which supplies rules for criminal trials in federal civilian courts. The rules in subchapter V of the MCA also adopt modifications to CIPA that reflect experience in courts that have construed it for use in federal terrorism trials. The MCA directs military judges to view CIPA case law as authoritative unless such a construction would be inconsistent with provisions of the MCA.

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 United States seeks to protect certain information from disclosure in any military commission case, the prosecution is to submit a declaration, signed by a knowledgeable official with classification authority, invoking the privilege and setting forth the damage to national security that would be expected to occur without protective measures. The military judge may not authorize the discovery of or access to such information unless he determines that it would be relevant and useful to any part of the defense's case. The military judge may authorize the United States to delete or withhold specified items of classified information from documents made available to the accused; substitute a summary of the information; or substitute a statement admitting relevant facts that the classified information would tend to prove. The military judge must consider a claim of privilege and review any supporting materials in camera if requested by the government, and must grant the relief sought if he finds that the summary, statement, or other substitute would "provide the accused with substantially the same ability to make a defense as would discovery or access to the specific classified information." The accused may not move for reconsideration of protective measures granted to the government if the order was entered pursuant to an ex parte showing. The government, however, can bring an interlocutory appeal in the event the judge orders that classified information must be disclosed or imposes sanctions for the government's refusal to permit disclosure, or refuses a protective order sought by the government.

With respect to the protection of intelligence sources and methods relevant to specific evidence, the military judge is required to permit trial counsel to introduce otherwise admissible evidence before the military commission without disclosing the "sources, methods, or activities by which the United States acquired the evidence" if the military judge finds that such information is otherwise admissible as evidence, that it is reliable, and that the redaction is consistent with affording the accused a fair trial.

The MCA does not explicitly provide an opportunity for the accused to contest the admissibility of substitute evidence proffered under the above procedures. It does not appear to permit the accused or his counsel to examine the evidence or a proffered substitute prior to its presentation to the military commission. If constitutional standards required in the Sixth Amendment are held to apply to military commissions, the MCA may be open to challenge for affording the accused an insufficient opportunity to contest evidence.

Classified evidence is privileged under Mil. Comm. R. Evid. 505. During the examination of witnesses at trial, the trial counsel may make an objection to any question or motion that might lead to the disclosure of classified information. The military judge is required to take appropriate action, such as taking a proffer of the nature of the information the witness might be expected to provide, reviewing the matter in camera if requested by the government. The judge may order that only parts of documents or other materials be entered into evidence, unless fairness dictates the whole ought to be considered. 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. In the event the military judge denies a government motion to provide a substitution or alternative to disclosures and the accused is prevented from disclosing classified information at trial due to the government's objection, the military judge may dismiss the case or, if the interest of justice is not served by dismissal, the judge may order other relief, such as dismissal of specified charges or specifications, finding against the government on any issue to which the excluded evidence is relevant, or striking or precluding all or part of a witness's testimony.

Sentencing

The MCA provides that military commissions may adjudge "any punishment not forbidden by [the MCA], 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 (except in the case of a guilty plea) 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 is 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 12 members of the commission voted to convict the accused (except in the case of a guilty plea); found that at least one of the listed aggravating factors exists; agreed that such factors outweigh any extenuating or mitigating circumstances; and voted to impose the death penalty. Aggravating factors include that the offense resulted in the death of or substantially endangered the life of one or more other persons, the offense was committed for the purpose of receiving money or a thing of value, the offense involved torture or certain other mistreatment, the accused was also found guilty of another capital crime, the victim was below the age of 15, or that the victim was a protected person. Other aggravating circumstances include specific law-of-war violations, which are not to be applied to offenses of which they are already an element.

Post-Trial Procedure

Subchapter VI of the MCA prescribes post-trial procedure and appeals, similar to procedures DOD had implemented. It provides for an administrative review of the trial record by the convening authority followed by a review panel. The MCA 2009 did not make major changes to the appellate structure.

Review and Appeal

The MCA 2006 codified the establishment of the review body set up under the pre-2006 DOD rules for military commissions. The Court of Military Commission Review (CMCR) is composed of judges who meet the same qualifications as military judges or comparable qualifications for civilian judges. 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 U.S. 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 the person's 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 in such cases by expressly eliminating the possibility that a finding that amounts to a verdict of not guilty is subject to reversal by the convening authority or to review by the CMCR or the D.C. Circuit. The severity of a sentence adjudged by the military commission cannot be increased on rehearing unless the sentence prescribed for the offense is mandatory. 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.

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.

The following charts provide a comparison of general courts-martial to the military tribunals under the Military Commissions Act of 2006 as initially enacted and as amended by the Military Commissions Act of 2009. Chart 1 compares the legal authorities for establishing military tribunals (including courts-martial), the jurisdiction over persons and offenses, and the structures of the tribunals. Chart 2 , which compares procedural safeguards, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts , by [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.

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 and Classified Evidence)

Right to Compulsory Process to Obtain Witnesses and Other Evidence (Discovery)

Right to Trial by Impartial Judge

Right to Trial by Impartial Jury

Right to Appeal to Independent Reviewing Authority

Protection Against Excessive Penalties