====== Military Commissions Explained: The Ultimate Guide to America's Wartime Courts ======
**LEGAL DISCLAIMER:** This article provides general, informational content for educational purposes only. It is not a substitute for professional legal advice from a qualified attorney. Always consult with a lawyer for guidance on your specific legal situation.
===== What is a Military Commission? A 30-Second Summary =====
Imagine a hospital. In its main building, you have state-of-the-art operating rooms, governed by strict, long-established procedures for every type of surgery. This is like a regular civilian court or even a military `[[court-martial]]`. Now, imagine a massive natural disaster strikes, and doctors must set up a MASH (Mobile Army Surgical Hospital) tent in the field. The goal is the same—to save lives—but the environment is chaotic, the tools are different, and the rules have to be adapted for the extreme circumstances. This MASH tent is a **military commission**.
It is a special type of court, separate from the civilian and regular military justice systems, created for one specific and highly controversial purpose: to try non-citizens accused of violating the `[[law_of_war]]`. These are not courts for ordinary crimes or for disciplining U.S. soldiers. They are wartime courts, convened to handle offenses like terrorism, spying, and targeting civilians, committed by members of enemy forces, particularly those deemed "unlawful enemy combatants." While they have existed since the founding of the United States, their modern use at places like `[[guantanamo_bay]]` has placed them at the center of a fierce national debate about justice, security, and the rule of law.
  *   **Key Takeaways At-a-Glance:**
    *   **A Court for Wartime Offenses:** A **military commission** is a specialized legal body convened by the military to prosecute non-U.S. citizens for violations of the international `[[law_of_war]]`.
    *   **Different Rules, Different Rights:** A **military commission** operates under different rules of evidence and procedure than civilian courts or courts-martial, which has led to major legal challenges concerning an accused person's right to `[[due_process]]`.
    *   **Controversial But Active:** The use of the **military commission** system, particularly for detainees at Guantánamo Bay, remains one of the most contentious legal issues in post-9/11 America, balancing national security needs against fundamental principles of justice.
===== Part 1: The Legal Foundations of Military Commissions =====
==== The Story of Military Commissions: A Historical Journey ====
The idea of a special court for wartime offenses is not new; it's as old as the nation itself. The story of the **military commission** is a journey through America's most defining conflicts, where the lines between battlefield and courtroom have often blurred.
  *   **The Revolution and the First Spy:** During the Revolutionary War, General George Washington used a "court of inquiry"—an early form of military commission—to try Major John André, a British officer caught spying in civilian clothes. André was convicted and executed, establishing the precedent that a commander in the field had the authority to create tribunals to enforce the laws of war.
  *   **The Civil War and a President's Power:** The use of commissions exploded during the `[[civil_war]]`. President Abraham Lincoln authorized them to try not just Confederate soldiers but also Northern civilians accused of aiding the enemy, known as "Copperheads." This led to a landmark [[supreme_court]] case, `[[ex_parte_milligan]]`. The Court ruled that military commissions could not be used to try civilians in areas where civilian courts were still functioning, a crucial check on executive power.
  *   **World War II and the Nazi Saboteurs:** In 1942, eight German saboteurs landed on U.S. shores with plans to destroy American infrastructure. They were captured and President Franklin D. Roosevelt ordered them tried by a secret military commission. In `[[ex_parte_quirin]]`, the Supreme Court upheld this decision, drawing a critical distinction: these men were **unlawful combatants**, not ordinary civilians or lawful prisoners of war, and thus could be tried by a commission for violating the laws of war.
  *   **The Post-9/11 Era:** After the September 11th attacks, President George W. Bush authorized the creation of new military commissions to try suspected al-Qaeda members captured in the "War on Terror" and held at `[[guantanamo_bay]]`. This modern revival ignited a firestorm of legal battles, leading to multiple Supreme Court showdowns and forcing Congress to pass new laws to govern how these courts operate.
==== The Law on the Books: Statutes and Codes ====
Unlike a court established directly by the Constitution, a **military commission** exists in a complex legal space, defined by a patchwork of executive orders, congressional acts, and Supreme Court rulings.
  *   **The Constitution:** The authority for military commissions is believed to stem from two places in the `[[u.s._constitution]]`. First, Article I gives Congress the power to "define and punish... Offenses against the Law of Nations." Second, Article II establishes the President as the Commander-in-Chief, giving him authority over the conduct of war. The tension between these two articles is at the heart of the debate over who has the ultimate power to create and control these courts.
  *   **The Uniform Code of Military Justice (UCMJ):** The `[[uniform_code_of_military_justice]]` is the primary legal code governing the U.S. Armed Forces. While it mainly details the system for `[[court-martial]]`, it also acknowledges the existence of military commissions, stating they can be convened to try offenses under the law of war.
  *   **The Military Commissions Act of 2006 (MCA):** After the Supreme Court struck down the Bush administration's first version of commissions in `[[hamdan_v._rumsfeld]]`, Congress passed the `[[military_commissions_act_of_2006]]`. This law formally authorized the commissions, outlined the specific crimes they could prosecute (like terrorism and attacking civilians), and established their rules of procedure. Critically, it also sought to strip federal courts of their jurisdiction to hear `[[habeas_corpus]]` petitions from detainees.
  *   **The Military Commissions Act of 2009 (MCA):** The 2006 Act faced immediate and harsh criticism. In 2008, the Supreme Court ruled in `[[boumediene_v._bush]]` that the provision stripping habeas corpus rights was unconstitutional. In response, the Obama administration and Congress passed the `[[military_commissions_act_of_2009]]`. This revised law strengthened some detainee rights, including limiting the use of evidence obtained through coercion and providing accused individuals with greater access to evidence against them, though it remains a subject of intense debate.
==== A Nation of Contrasts: Comparing Justice Systems ====
To truly understand what a **military commission** is, you must understand what it is not. Its rules and purpose are fundamentally different from the courts most Americans are familiar with. This table shows the critical distinctions between the three primary federal justice systems.
^ System ^ Purpose ^ Who is Tried? ^ "Jury" ^ Key Rules of Evidence ^
| **Federal Civilian Court (Article III Court)** | To adjudicate violations of federal law (e.g., mail fraud, drug trafficking, civil rights violations). | U.S. citizens and non-citizens within U.S. jurisdiction. | A jury of 12 citizens, with a unanimous verdict required for conviction. | Strict adherence to the `[[federal_rules_of_evidence]]`. Hearsay is heavily restricted. Evidence obtained illegally is excluded. |
| **Court-Martial** | To enforce military discipline and prosecute service members for crimes under the `[[uniform_code_of_military_justice]]` (UCMJ). | Members of the U.S. Armed Forces. | A panel of military members, typically senior in rank to the accused. | The Military Rules of Evidence, which largely mirror the federal rules. Provides significant `[[due_process]]` protections. |
| **Military Commission** | To prosecute non-U.S. citizens designated as "unlawful enemy combatants" for violations of the `[[law_of_war]]`. | Non-U.S. citizens, primarily those accused of terrorism or war crimes. | A panel of at least five military officers. A two-thirds majority is needed for conviction (unanimous for death penalty). | More lenient. Hearsay evidence is more easily admitted. Allows for the use of classified evidence that the defendant may not fully see. |
**What does this mean for you?** It means that the American justice system is not monolithic. The rights and procedures in a courtroom depend entirely on who you are (a civilian, a soldier, or a designated enemy combatant) and what you are accused of doing. Military commissions represent a departure from traditional American justice, created for the unique and challenging context of international conflict.
===== Part 2: Deconstructing the Core Elements =====
==== The Anatomy of a Military Commission: Key Components Explained ====
A **military commission** is more than just a courtroom with soldiers in it. Its entire structure is built around its specific mission. Let's break down its essential parts.
=== Element: Jurisdiction (Who and What) ===
Jurisdiction is a court's authority to hear a case. For a military commission, this is the most critical and controversial element.
  *   **Personal Jurisdiction (Who can be tried?):** The law explicitly limits jurisdiction to alien (non-U.S. citizen) "unlawful enemy combatants." A lawful combatant (e.g., a uniformed soldier from another country's army) who is captured becomes a `[[prisoner_of_war]]` (POW) and is protected by the `[[geneva_conventions]]`. An unlawful combatant is someone who engages in hostilities without being part of a regular armed force, such as a member of a terrorist group. This distinction is the legal gateway to a commission trial.
  *   **Subject-Matter Jurisdiction (What crimes can be tried?):** Commissions cannot try just any crime. Their authority is restricted to violations of the `[[law_of_war]]` and other offenses specifically listed in the `[[military_commissions_act_of_2009]]`. These include:
    *   Terrorism
    *   Attacking civilians
    *   Taking hostages
    *   Murder in violation of the law of war
    *   Spying
    *   Providing material support for terrorism
=== Element: The Rules of Evidence ===
This is where commissions differ most sharply from civilian courts. The rules are designed to accommodate the realities of collecting evidence on a battlefield, but critics argue they come at the expense of a fair trial.
  *   **Hearsay:** In a regular court, `[[hearsay]]` (an out-of-court statement offered to prove the truth of the matter asserted) is generally inadmissible. In military commissions, hearsay evidence is much more likely to be allowed if the judge deems it reliable and relevant. This is because witnesses may be on a battlefield, deceased, or otherwise unavailable.
  *   **Coerced Statements:** The 2009 Act prohibits the use of statements obtained through torture. However, it gives the judge discretion to admit statements obtained through coercion (if not amounting to torture) if certain conditions are met, a provision that remains highly controversial.
  *   **Classified Information:** A major challenge is handling classified evidence. The government can introduce summaries or redacted versions of sensitive intelligence to protect national security, meaning the accused and their lawyer may never see the full evidence being used against them.
=== Element: The Decision-Makers ===
The "judge" and "jury" in a military commission are composed entirely of military personnel.
  *   **The Military Judge:** A commissioned officer and certified military judge who presides over the proceedings, rules on motions, and instructs the panel members on the law.
  *   **The Commission Members (The Panel):** This is the equivalent of a jury. It consists of at least five (or twelve for capital cases) commissioned officers. Unlike a civilian jury, they are not the defendant's "peers" but are active-duty members of the armed forces. They vote on guilt or innocence and, if applicable, the sentence. A conviction requires a two-thirds majority vote, except for a death sentence, which must be unanimous.
==== The Players on the Field: Who's Who in a Military Commission Case ====
  *   **The Accused:** The non-U.S. citizen designated as an unlawful enemy combatant. They have the right to counsel and to be present at trial, though this can be limited for security reasons.
  *   **The Defense Counsel:** The accused is assigned a detailed military defense counsel from one of the services' `[[judge_advocate_general's_corps]]` (JAG Corps). They can also hire a civilian lawyer at their own expense, provided that lawyer has the appropriate security clearance.
  *   **The Trial Counsel (Prosecution):** The government's lawyers, also members of the JAG Corps, who are responsible for presenting the case against the accused.
  *   **The Convening Authority:** A high-ranking official within the `[[department_of_defense]]` who makes the formal decision to refer charges to a military commission. This official essentially acts as the gatekeeper for the entire system, deciding which cases go to trial.
===== Part 3: Understanding the Process: From Capture to Verdict =====
The path through the military commission system is long and complex. It does not follow the familiar steps of a local criminal case. This is a simplified, chronological overview of the journey.
=== Step 1: Apprehension and Designation ===
It begins not with a police arrest, but often with capture on a battlefield or in a counter-terrorism operation anywhere in the world. The individual is detained by U.S. forces. At some point, the person must be designated an "alien unlawful enemy combatant" to become subject to the jurisdiction of a military commission. This designation process itself has been the subject of intense legal debate.
=== Step 2: Investigation and Referral of Charges ===
Military investigators and intelligence agencies gather evidence related to the detainee's alleged crimes. This can be a challenging process, involving evidence collected from conflict zones, interrogations, and classified intelligence sources. If the prosecution team believes there is sufficient evidence, they draft a `[[charge_sheet]]` and recommend prosecution to the Convening Authority. The Convening Authority then formally "refers" the charges to a commission, officially starting the judicial process.
=== Step 3: Pre-Trial Proceedings ===
This is often the longest and most contentious phase.
  *   **Arraignment:** The accused is formally read the charges against them and enters a plea.
  *   **Discovery:** The prosecution must turn over evidence to the defense. However, disputes over access to classified evidence are common and can cause massive delays.
  *   **Motions Practice:** The defense will file numerous pre-trial motions, challenging everything from the court's jurisdiction to the admissibility of evidence obtained through harsh interrogation techniques. These legal battles can take years to resolve.
=== Step 4: The Trial ===
The trial itself resembles a court-martial but has unique features.
  *   **Panel Selection (Voir Dire):** The lawyers for both sides question potential commission members to screen for bias.
  *   **Presentation of Evidence:** The prosecution and defense present their cases, call witnesses, and cross-examine them. This process is complicated by the use of classified evidence and testimony from witnesses who may be located around the world.
  *   **Deliberation and Verdict:** After closing arguments and legal instructions from the judge, the panel members deliberate in secret. A two-thirds vote is required for a guilty verdict.
=== Step 5: Sentencing and Appeals ===
If the accused is found guilty, the trial moves to a sentencing phase where both sides present evidence and arguments regarding the appropriate punishment. The appeals process is also unique.
  *   **Initial Review:** The Convening Authority reviews the verdict and sentence.
  *   **U.S. Court of Military Commission Review (USCMCR):** An automatic appeal goes to this specialized court, composed of military and civilian appellate judges.
  *   **U.S. Court of Appeals for the D.C. Circuit:** The defendant can then appeal the USCMCR's decision to a powerful civilian court, the `[[u.s._court_of_appeals_for_the_district_of_columbia_circuit]]`.
  *   **U.S. Supreme Court:** The final appeal, which the `[[supreme_court]]` can choose to hear or not, is to the highest court in the land.
==== Essential Documents in a Commission Case ====
While an ordinary person won't be filling out these forms, understanding them is key to grasping the legal machinery of the system.
  *   **The Charge Sheet:** This is the foundational charging document. It formally lists the accused's name and the specific offenses they are alleged to have committed under the Military Commissions Act, much like an `[[indictment]]` in civilian court. Each charge must be supported by a brief statement of the alleged facts.
  *   **The Convening Order:** This is the legal instrument that officially creates a specific military commission. It is issued by the Convening Authority and names the members of the panel who will sit as the jury, formally granting them the authority to hear the case. Without this order, the court has no legal power.
  *   **Writ of Habeas Corpus Petition:** While not a document *of* the commission, it is the most critical document *against* it. A `[[habeas_corpus]]` petition is filed in a civilian federal court, demanding that the government justify the legal basis for a person's detention. For Guantánamo detainees, these petitions have been the primary tool for challenging their confinement and the legitimacy of the commission system itself.
===== Part 4: Landmark Cases That Shaped Today's Law =====
The modern military commission is a creature of the courtroom, sculpted by over 150 years of Supreme Court rulings. These four cases are the pillars of its legal foundation.
==== Case Study: Ex Parte Milligan (1866) ====
  *   **The Backstory:** Lambdin P. Milligan, a civilian lawyer in Indiana, was arrested in 1864, accused of conspiring to raid POW camps and aid the Confederacy. Though the civilian courts in Indiana were open and operating, he was tried, convicted, and sentenced to hang by a military commission.
  *   **The Legal Question:** Could a military commission try a U.S. citizen in a state that was not an active warzone and where the civilian courts were functioning?
  *   **The Holding:** No. The Supreme Court issued a resounding rejection of this use of military power. The Court declared that "The Constitution of the United States is a law for rulers and people, equally in war and in peace." As long as civilian courts are open, a civilian cannot be tried by the military.
  *   **Impact on You Today:** `[[ex_parte_milligan]]` stands as a powerful protection of civil liberties, establishing a bright line that the military justice system cannot cross into the civilian world, even during a national crisis.
==== Case Study: Ex Parte Quirin (1942) ====
  *   **The Backstory:** During World War II, eight German soldiers, including one who was a U.S. citizen, traveled by submarine to the U.S. to carry out acts of sabotage. They were caught and President Roosevelt ordered them tried by a military commission.
  *   **The Legal Question:** Could the government use a military commission to try these men, including the U.S. citizen, for offenses against the law of war?
  *   **The Holding:** Yes. The Supreme Court distinguished this case from *Milligan*. It ruled that the defendants were "unlawful combatants." They were not ordinary civilians but soldiers who acted out of uniform behind enemy lines. The Court held that citizenship did not protect an individual from being tried by a commission for such wartime offenses.
  *   **Impact on You Today:** `[[ex_parte_quirin]]` created the crucial legal category of "unlawful combatant" and affirmed that military commissions were a constitutionally permissible tool for prosecuting them, a precedent that became the cornerstone of the post-9/11 legal framework.
==== Case Study: Hamdan v. Rumsfeld (2006) ====
  *   **The Backstory:** Salim Hamdan, a Yemeni citizen who worked as Osama bin Laden's driver, was captured in Afghanistan and sent to Guantánamo Bay. He was charged with conspiracy and set to be tried by one of the military commissions created by President Bush.
  *   **The Legal Question:** Did the President have the authority to create these commissions on his own, and did their procedures violate U.S. law and the Geneva Conventions?
  *   **The Holding:** The Supreme Court delivered a major blow to the Bush administration. It ruled that the commissions, as structured, were illegal. They had not been authorized by Congress and their procedures violated both the UCMJ and the `[[geneva_conventions]]`. The Court specifically pointed out that conspiracy was not a recognized war crime triable by a military commission.
  *   **Impact on You Today:** `[[hamdan_v._rumsfeld]]` was a powerful reassertion of the separation of powers. It forced the executive branch to go to Congress to get authorization for the commissions, leading directly to the passage of the `[[military_commissions_act_of_2006]]` and ensuring that even in wartime, the President cannot create a justice system unilaterally.
==== Case Study: Boumediene v. Bush (2008) ====
  *   **The Backstory:** After the *Hamdan* decision, Congress passed the MCA of 2006, which included a provision explicitly stripping federal courts of the power to hear habeas corpus petitions from Guantánamo detainees. Lakhdar Boumediene and other detainees challenged this law.
  *   **The Legal Question:** Does the Constitution's Suspension Clause, which guarantees the right to `[[habeas_corpus]]`, apply to non-citizens held by the U.S. military at Guantánamo Bay, a territory outside of formal U.S. sovereignty?
  *   **The Holding:** Yes. In a landmark 5-4 decision, the Supreme Court ruled that the detainees had a constitutional right to challenge their detention in U.S. civilian courts. The Court declared that "the laws and Constitution are designed to survive, and remain in force, in extraordinary times."
  *   **Impact on You Today:** `[[boumediene_v._bush]]` affirmed that the reach of the U.S. Constitution is not limited by geography alone. It stands for the principle that the government cannot create a "law-free zone" and ensures that the federal courts have a critical oversight role in even the most sensitive national security detentions.
===== Part 5: The Future of Military Commissions =====
==== Today's Battlegrounds: Current Controversies and Debates ====
Decades after 9/11, military commissions remain a source of intense legal and ethical debate. The system has been plagued by problems that call its legitimacy and effectiveness into question.
  *   **The Pace of Justice:** The system has proven to be incredibly slow. Cases, including that of the alleged 9/11 plotters, have been stuck in pre-trial hearings for over a decade, with no end in sight. This has led to accusations that the system is failing to provide swift justice for victims and due process for the accused.
  *   **The "Tainted" Evidence Problem:** A central struggle is how to handle evidence obtained through the CIA's past use of "enhanced interrogation techniques," widely regarded as torture. The law forbids using such evidence directly, but the defense argues that all subsequent evidence is "fruit of the poisonous tree" and should be excluded, creating enormous legal hurdles for the prosecution.
  *   **Legitimacy and Cost:** Critics argue the commissions are a form of "second-class justice" that lacks the credibility of federal courts. Furthermore, the cost of running the Guantánamo Bay detention facility and the commission system is astronomical, costing taxpayers hundreds of millions of dollars per year for a handful of cases. Proponents argue they are a necessary tool for handling complex international terrorism cases involving classified evidence that would be impossible to try in a regular court.
==== On the Horizon: How Technology and Society are Changing the Law ====
The nature of warfare is changing, and these changes will inevitably challenge the legal framework of military commissions.
  *   **Cyber Warfare:** If a state-sponsored or non-state group of hackers inside another country launches a devastating cyber-attack on U.S. infrastructure, could they be considered "unlawful enemy combatants"? Can a "cyber-attack" be an act of war triable by a military commission? The law is completely unprepared for these questions.
  *   **Drone Warfare and Remote Combatants:** The `[[law_of_war]]` was built around physical battlefields. When combatants are fighting via remote-controlled drones or online propaganda, the definitions of "combatant" and "direct participation in hostilities" become murky. The legal system will have to adapt to a world where the enemy may never set foot on a traditional battlefield.
  *   **The Rise of Non-State Actors:** The commissions were designed for a conflict against a group like al-Qaeda. As global threats evolve to include decentralized, ideologically motivated groups and lone-wolf actors inspired online, the legal framework for who qualifies for commission jurisdiction will face new and difficult tests.
===== Glossary of Related Terms =====
  *   **Charge Sheet:** The formal document listing the criminal accusations against an individual in the military justice system. [[charge_sheet]]
  *   **Convening Authority:** The high-level commander who has the authority to order a court-martial or military commission into session.
  *   **Court-Martial:** A judicial court for trying members of the armed services accused of offenses against military law. [[court-martial]]
  *   **Due Process:** The legal requirement that the state must respect all legal rights that are owed to a person, ensuring fundamental fairness. [[due_process]]
  *   **Enemy Combatant:** A person who, either lawfully or unlawfully, engages in hostilities for an enemy state or group in an armed conflict.
  *   **Ex Parte:** A legal proceeding brought by one person in the absence of and without representation or notification of other parties.
  *   **Geneva Conventions:** A series of international treaties on the treatment of civilians, prisoners of war (POWs), and soldiers who are otherwise rendered incapable of fighting. [[geneva_conventions]]
  *   **Habeas Corpus:** A legal action through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person to bring the prisoner to court to determine if the detention is lawful. [[habeas_corpus]]
  *   **Judge Advocate General's Corps (JAG):** The legal branch of the U.S. Army, Navy, Air Force, Marine Corps, and Coast Guard. [[judge_advocate_general's_corps]]
  *   **Jurisdiction:** The official power to make legal decisions and judgments. [[jurisdiction]]
  *   **Law of War:** Also known as international humanitarian law, it is the body of law that governs the conduct of armed conflict. [[law_of_war]]
  *   **Prisoner of War (POW):** A person, whether a combatant or a non-combatant, who is held in custody by a belligerent power during or immediately after an armed conflict. [[prisoner_of_war]]
  *   **Uniform Code of Military Justice (UCMJ):** The foundation of military law in the United States, enacted by Congress. [[uniform_code_of_military_justice]]
  *   **Unlawful Enemy Combatant:** An individual who has directly participated in hostilities in violation of the laws of war.
===== See Also =====
  *   [[habeas_corpus]]
  *   [[due_process]]
  *   [[law_of_war]]
  *   [[court-martial]]
  *   [[geneva_conventions]]
  *   [[uniform_code_of_military_justice]]
  *   [[war_crimes]]