Show pageBack to top This page is read only. You can view the source, but not change it. Ask your administrator if you think this is wrong. ====== Military Commissions: 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 are Military Commissions? A 30-Second Summary ===== Imagine the normal American justice system is like the official, regulated league of Major League Baseball. The rules are ancient, tested, and known by everyone. The stadiums (courthouses) are established, and the umpires (judges) are part of a long-standing tradition. A `[[court-martial]]` is like a game played within this same league but with a special rulebook just for the players (military members). Now, imagine a war breaks out, and you must face an opponent who doesn’t wear a uniform, doesn’t respect the rules of the game, and plays on a dangerous, unfamiliar field. To handle this unique situation, you create a special, pop-up tournament with its own set of umpires and a custom-made rulebook designed specifically for that conflict. This special tournament is a **military commission**. It's a parallel system of justice, run by the military, designed to operate outside the traditional civilian and military court systems to try members of enemy forces, specifically for violations of the `[[law_of_war]]`. It's a powerful tool for wartime, but also one of the most controversial legal concepts in the United States, raising profound questions about fairness, justice, and the balance between security and liberty. * **Key Takeaways At-a-Glance:** * **A Separate System of Justice:** **Military commissions** are special wartime courts, distinct from both civilian federal courts and regular courts-martial, designed to prosecute individuals for violations of the `[[law_of_war]]`. * **Targeted at a Specific Group:** These courts are not for U.S. citizens in peacetime or for ordinary soldiers; **military commissions** are primarily intended to try foreign enemy combatants, such as terrorists or spies, who are captured during a conflict. [[unlawful_combatant]]. * **Highly Controversial:** The use of **military commissions**, particularly at Guantanamo Bay, is intensely debated, centering on whether they provide sufficient `[[due_process]]` rights to defendants compared to traditional American courts. [[habeas_corpus]]. ===== 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 as old as the nation itself. This is not a recent invention but a tool that has been used, debated, and reshaped through America's most defining conflicts. Its roots trace back to the Revolutionary War. General George Washington convened a "Board of General Officers" in 1780 to try Major John André, a British officer caught spying in civilian clothes. Lacking jurisdiction under the existing rules for courts-martial, Washington used his authority as `[[commander-in-chief]]` to create a tribunal based on the `[[law_of_war]]`. André was convicted and executed. This set the precedent: when the existing rules of justice don't fit the unique circumstances of war, a military commission can be formed. The concept was used again during the Mexican-American War and saw its most extensive use during the American `[[civil_war]]`. President Abraham Lincoln authorized military commissions to try thousands of individuals, including spies, saboteurs, and Confederate sympathizers. This led to a landmark [[supreme_court]] case, `[[ex_parte_milligan]]` (1866). Lambdin Milligan, a civilian in Indiana, was sentenced to death by a military commission for conspiring against the Union. The Supreme Court overturned his conviction, famously ruling that military commissions cannot try civilians in areas where civilian courts are open and functioning. This case established a critical boundary on the power of these tribunals. The 20th century saw another crucial test during World War II. In `[[ex_parte_quirin]]` (1942), the Supreme Court upheld the use of a military commission to try eight German saboteurs who landed on U.S. shores. The Court reasoned that these men, by secretly crossing enemy lines to commit sabotage, were unlawful enemy belligerents and thus subject to trial by commission, even if one was technically a U.S. citizen. The modern era of military commissions began in the immediate aftermath of the September 11th attacks. On November 13, 2001, President George W. Bush issued a military order authorizing the creation of commissions to try non-citizen members of Al-Qaeda captured in the "War on Terror." This act launched over two decades of intense legal and political battles, primarily centered on the detention facility at [[guantanamo_bay]], Cuba. Landmark cases like `[[hamdan_v._rum_sfeld]]` and `[[boumediene_v._bush]]` challenged the President's authority and forced Congress to step in, leading to the laws that govern the system today. ==== The Law on the Books: Statutes and Codes ==== Unlike civilian courts, which derive their authority directly from Article III of the Constitution, military commissions have a more complex legal footing. Their authority comes from a blend of the President's constitutional powers and specific laws passed by Congress. * **The U.S. Constitution:** Article II designates the President as `[[commander-in-chief]]` of the armed forces. This role has historically been interpreted to include the power to establish military commissions to prosecute violations of the `[[law_of_war]]` as an inherent part of waging war. * **The Military Commissions Act of 2006 (`[[military_commissions_act_of_2006]]`)**: After the Supreme Court ruled in `[[hamdan_v._rum_sfeld]]` that President Bush's initial commissions were not authorized by Congress and violated the `[[geneva_conventions]]`, Congress passed this Act to explicitly authorize them. It established detailed procedures and a list of punishable offenses. * **The Military Commissions Act of 2009 (`[[military_commissions_act_of_2009]]`)**: President Obama signed this updated version to reform the 2006 Act and provide more legal protections for defendants. A key provision states: > "A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unprivileged enemy belligerent before, on, or after September 11, 2001." **Plain-Language Explanation:** This means the modern commissions are specifically designed to try non-U.S. citizens who are considered "unprivileged enemy belligerents" (like members of a terrorist group) for war crimes. The law also strengthened the ban on evidence obtained through torture and expanded the defendant's access to evidence. ==== A Battle of Systems: Military Commissions vs. Other Courts ==== Military commissions are a unique legal forum. To truly understand them, it's essential to see how they stack up against the other judicial systems an individual might face. The choice of venue—where a person is tried—is one of the most critical decisions in the justice process, as it determines the rules, rights, and potential outcomes. ^ **Feature** ^ **U.S. Federal Court (Article III)** ^ **Court-Martial (UCMJ)** ^ **Military Commission** ^ | **Who is Tried?** | Any person (civilian or military) accused of violating U.S. federal law. | Members of the U.S. Armed Forces accused of violating the `[[uniform_code_of_military_justice]]` (UCMJ). | Primarily non-U.S. citizens designated as "unprivileged enemy belligerents" for `[[war_crimes]]`. | | **Purpose** | To resolve disputes and uphold federal law for the general population. | To maintain good order and discipline within the military. | To prosecute violations of the international `[[law_of_war]]` during armed conflict. | | **Judges** | Independent, life-appointed federal judges. | A military judge, who is a uniformed lawyer (JAG officer). | A military judge, who is a uniformed lawyer (JAG officer). | | **Jury** | A jury of 12 civilians who must reach a unanimous verdict. | A panel of military members (officers or enlisted) of a certain rank. A unanimous verdict is required only for death penalty cases. | A panel of at least five military officers. A two-thirds vote is needed for conviction; a unanimous vote is required for a death sentence. | | **Rules of Evidence** | Strict Federal Rules of Evidence. Hearsay is generally inadmissible. Evidence obtained illegally is often excluded (`[[exclusionary_rule]]`). | Military Rules of Evidence, which are very similar to federal rules. | More lenient rules. Hearsay and evidence that might be inadmissible in other courts may be allowed if it is deemed reliable and relevant. | | **Key Defendant Right** | Full range of `[[due_process]]` rights under the `[[bill_of_rights]]`, including a speedy and public trial. | Extensive rights under the UCMJ and Constitution, often mirroring civilian rights. | A defined set of rights under the `[[military_commissions_act_of_2009]]`, but these can be more limited than in other courts (e.g., regarding access to classified evidence). | **What this means for you:** This table shows that **military commissions** are a specialized tool for a specific purpose. They are not meant to replace the robust, time-tested civilian and military justice systems that protect the rights of ordinary Americans and U.S. service members. The controversy arises because the rules in this third system are different, leading to debates about whether they are fundamentally fair. ===== Part 2: Deconstructing the Core Elements ===== ==== The Anatomy of a Military Commission: Key Components Explained ==== To grasp how these commissions function, it's helpful to break them down into their essential parts, much like a mechanic would examine an engine. === Element: Jurisdiction (Who can be tried?) === This is the most fundamental component. A court's `[[jurisdiction]]` is its authority to hear a case. Military commissions have a very narrow jurisdiction. They can only try individuals who meet two criteria: 1. **Status:** The person must be an "unprivileged enemy belligerent." This is a legal term of art. A "privileged" belligerent is a soldier in a traditional army who wears a uniform and follows the `[[law_of_war]]`; they are entitled to `[[prisoner_of_war]]` status if captured. An "unprivileged" belligerent is someone like a terrorist or saboteur who does not wear a uniform and does not follow the laws of war. 2. **Offense:** The crime must be a violation of the `[[law_of_war]]` or one of the specific offenses listed in the `[[military_commissions_act_of_2009]]`. These include crimes like terrorism, attacking civilians, taking hostages, and murder in violation of the law of war. **Example:** A captured Al-Qaeda operative accused of planning the bombing of a U.S. embassy would fall under the jurisdiction of a military commission. A U.S. soldier who commits a crime like theft on a military base would be tried by a `[[court-martial]]`. A civilian who robs a bank in Miami would be tried in a regular federal or state court. === Element: Applicable Law (What are the rules?) === Military commissions apply a unique blend of laws. The primary source is the international `[[law_of_war]]` (also known as the law of armed conflict), which governs conduct during wartime. In addition, the procedures and specific offenses are defined by the `[[military_commissions_act_of_2009]]`. This is different from a civilian court, which applies U.S. federal or state law, or a court-martial, which applies the `[[uniform_code_of_military_justice]]`. === Element: Rules of Evidence (What proof is allowed?) === This is a major point of controversy. In traditional U.S. courts, the rules of `[[evidence]]` are very strict to ensure reliability and protect the defendant's rights. For example, `[[hearsay]]`—a statement made out of court offered to prove the truth of the matter asserted—is generally not allowed. In military commissions, the rules are more relaxed. * **Hearsay:** Hearsay evidence may be admitted if the military judge determines it is reliable and its value is not outweighed by potential prejudice to the defendant. * **Coerced Statements:** Statements obtained through torture are strictly forbidden. However, statements obtained through coercion (that doesn't rise to the level of torture) might be admitted if other evidence corroborates them and the judge finds it is in the interest of justice. This is a significant departure from civilian courts. * **Classified Information:** The government can use classified information against a defendant without revealing it publicly, and sometimes without showing the full details to the defendant, to protect national security. === Element: Composition and Sentencing (Who decides and what happens?) === A military commission is presided over by a military judge. The role of the jury is filled by a "panel" of at least five military officers. For a conviction, at least two-thirds of the panel members must agree. For a death sentence, the panel's vote must be unanimous. Any sentence of more than 10 years or involving the death penalty receives an automatic appeal. The appeals process goes through a special U.S. Court of Military Commission Review and then can be appealed to the D.C. Circuit Court of Appeals and ultimately the [[supreme_court]]. ==== The Players on the Field: Who's Who in a Military Commission Case ==== Understanding the key roles is crucial to following a case. * **Convening Authority:** A high-level official, usually the Secretary of Defense or a designated subordinate, who formally refers charges to the commission for trial. This role is similar to a grand jury in the civilian system, deciding whether there is enough evidence to proceed. * **Military Judge:** A commissioned officer and certified military lawyer who presides over the proceedings, rules on motions, and instructs the panel on the law. * **Trial Counsel (Prosecution):** The government's lawyers, who are also military attorneys (`[[judge_advocate_general's_corps]]`). Their job is to prove the defendant's guilt beyond a reasonable doubt. * **Defense Counsel:** The accused is provided with a detailed military defense counsel free of charge. They also have the right to hire a private civilian lawyer at their own expense, provided that lawyer has the appropriate security clearance. * **Panel Members (The Jury):** A group of commissioned military officers who listen to the evidence, determine the facts, and decide on guilt or innocence. They also decide on the sentence if the defendant is convicted. ===== Part 3: Your Practical Playbook: How to Understand and Follow a Case ===== While it's unlikely you'll ever be directly involved in a military commission, as an informed citizen, you may want to follow these important proceedings. Here's a guide to navigating the information. === Step 1: Find the Official Source === The primary source of information for ongoing cases is the `[[department_of_defense]]`'s Office of Military Commissions (OMC) website. This site is the official repository for case documents, schedules, and transcripts. Bookmark it to get information directly from the source and avoid misinformation. === Step 2: Identify the Accused and the Charges === When you look at a case, first understand who the accused is and what they are accused of. The key document is the **Charge Sheet**. It will list the specific offenses under the `[[military_commissions_act_of_2009]]`, such as "Terrorism" or "Murder in Violation of the Law of War." This is the foundation of the entire case. === Step 3: Follow the Pre-Trial Motions === Much of the legal action in these complex cases happens *before* the main trial. Lawyers file numerous pre-trial motions to argue about what evidence should be allowed, whether the commission has jurisdiction, or whether the defendant's rights have been violated. Reading the motions and the judge's rulings can give you deep insight into the core legal battles of the case. These are often where major constitutional questions are debated. === Step 4: Understand the Trial Phases === If a case goes to trial, it follows a familiar structure: - **Opening Statements:** Both the prosecution and defense outline their case. - **Presentation of Evidence:** The prosecution presents its witnesses and evidence. The defense has the right to cross-examine witnesses. - **Defense Case:** The defense can present its own evidence and witnesses. The accused has the right not to testify. - **Closing Arguments:** Each side summarizes their case and tries to persuade the panel. - **Panel Deliberation and Verdict:** The panel deliberates in secret to reach a verdict. - **Sentencing Phase:** If convicted, a separate hearing is held to determine the sentence. === Step 5: Track the Appeals === A conviction and sentence are not the end of the story. There is a multi-layered appeals process. Following these appeals is essential, as this is where higher courts review the trial for legal errors and decide on the fundamental constitutional questions that these commissions raise. ==== Essential Paperwork: Key Forms and Documents ==== You won't be filling these out, but understanding them is key to following a case. * **Convening Order:** This is the formal document that creates a specific military commission for a particular case. It names the members of the panel and officially starts the process. * **Charge Sheet:** As mentioned above, this is the legal document that formally accuses the defendant of specific crimes. It's the equivalent of an `[[indictment]]` in the civilian system. It lays out what the prosecution must prove. * **Motion to Suppress:** This is a common and critical pre-trial motion filed by the defense. It asks the judge to exclude certain evidence from the trial, often because it was obtained illegally (e.g., through coercion). The judge's ruling on this motion can dramatically alter the course of a case. ===== Part 4: Landmark Cases That Shaped Today's Law ===== The modern understanding of military commissions has been forged in the crucible of the [[supreme_court]]. These cases are not just historical footnotes; they are active and powerful precedents that define the limits of government power. ==== Ex parte Milligan (1866) ==== * **Backstory:** Lambdin Milligan, a pro-Confederate civilian lawyer in Indiana, was arrested in 1864, tried by a military commission, and sentenced to hang for conspiracy and insurrection. He was not a member of any army and was arrested far from the battlefields. * **The Legal Question:** Can a military commission try a U.S. civilian in a state that is not in rebellion and where federal civilian courts are open and operating? * **The Court's Holding:** A resounding **NO**. The Supreme Court declared that as long as civilian courts are open, a civilian cannot be tried by the military. Martial law and military commissions are tools for the battlefield, not for areas where the civil justice system is functioning. * **Impact on You Today:** `[[Ex parte Milligan]]` stands as a powerful protection of `[[civil_liberties]]`. It draws a bright line between military and civilian authority, ensuring that the military cannot usurp the role of the civilian justice system to try ordinary citizens. ==== Ex parte Quirin (1942) ==== * **Backstory:** Eight Nazi saboteurs, including one who was a U.S. citizen, landed on U.S. shores from submarines during WWII with plans to destroy American infrastructure. They were caught by the FBI. President Roosevelt ordered them tried by a secret military commission. * **The Legal Question:** Can the U.S. government use a military commission to try enemy belligerents, including a U.S. citizen, who are captured on U.S. soil? * **The Court's Holding:** **YES**. The Court distinguished this case from *Milligan*. Unlike Milligan, the saboteurs were part of the enemy's forces. The Court ruled that "unlawful combatants" are not entitled to the same treatment as lawful prisoners of war and can be tried and punished by military commissions for their offenses against the `[[law_of_war]]`. * **Impact on You Today:** `[[Ex parte Quirin]]` provides the legal foundation for the modern use of military commissions against members of terrorist organizations. It establishes the principle that an individual's status as an "unlawful combatant" is key to subjecting them to this form of justice. ==== Hamdan v. Rumsfeld (2006) ==== * **Backstory:** Salim Hamdan, a Yemeni citizen who worked as Osama bin Laden's driver, was captured in Afghanistan and held at Guantanamo Bay. He was charged before a military commission created by President George W. Bush's 2001 military order. * **The Legal Question:** Did the President have the authority to establish these commissions on his own, and did their structure and procedures violate U.S. law (the UCMJ) and international law (the Geneva Conventions)? * **The Court's Holding:** **NO**. In a major rebuke to executive power, the Court held that the commissions, as structured, were illegal. They had not been authorized by Congress, and their procedures violated both the `[[uniform_code_of_military_justice]]` and the `[[geneva_conventions]]`, which require that prisoners be tried in a "regularly constituted court" with essential judicial guarantees. * **Impact on You Today:** `[[Hamdan v. Rumsfeld]]` was a landmark decision that reaffirmed the separation of powers. It established that even the `[[commander-in-chief]]` is not above the law and cannot create a system of justice from scratch without congressional approval. This ruling forced the Bush administration and Congress to go back to the drawing board, leading directly to the `[[military_commissions_act_of_2006]]`. ===== Part 5: The Future of Military Commissions ===== ==== Today's Battlegrounds: Current Controversies and Debates ==== Military commissions remain one of the most contentious legal topics in the U.S. The debate is not just academic; it concerns the very soul of American justice. * **Legitimacy and Fairness:** The central criticism is that commissions are a second-class system of justice. Critics argue that the relaxed rules of evidence, the use of military officers as jurors, and the political context create an environment that is tilted in favor of the prosecution. Proponents argue they are a necessary adaptation to the unique challenges of fighting non-state actors like terrorist groups. * **The Pace of Justice:** The proceedings at Guantanamo Bay have been notoriously slow. Cases have been bogged down in pre-trial litigation for over a decade, with no resolution in sight for the most high-profile detainees. This has led to accusations that the system is failing to deliver justice for either the victims of terrorism or the accused. * **Due Process vs. National Security:** The most enduring debate is the balance between providing a fair trial and protecting classified information. How can the government prove its case using sensitive intelligence without compromising national security sources and methods? And how can a defendant mount an effective defense if they cannot see all the evidence against them? This tension is at the heart of nearly every legal battle in the commissions. ==== On the Horizon: How Technology and Society are Changing the Law ==== The nature of warfare is constantly evolving, and the law must struggle to keep up. * **Cyber Warfare:** If a foreign, non-state actor launches a devastating cyberattack on U.S. infrastructure, is that an act of war? Could the perpetrators, if captured, be tried by a military commission? The legal framework is still being developed for how to apply the `[[law_of_war]]` to the digital battlefield. * **Drone Warfare and Remote Conflict:** The rise of targeted killings via drones raises new questions. If a member of a terrorist group is captured in a country where the U.S. is not in a traditional "hot" war, can they be tried by a military commission? Defining the geographic and temporal boundaries of an "armed conflict" is a major challenge for the 21st century. * **The End of the "War on Terror"?** Military commissions are a tool of war. If the "War on Terror" is declared to be over, the legal justification for the commissions would evaporate. The future of these tribunals is inextricably linked to the future of U.S. foreign policy and the ever-shifting definition of armed conflict. ===== Glossary of Related Terms ===== * **Belligerent:** An individual, group, or nation engaged in fighting or war. [[belligerent]]. * **Commander-in-Chief:** The role of the President of the United States as the supreme commander of the nation's armed forces. [[commander-in-chief]]. * **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. [[due_process]]. * **Exclusionary Rule:** A legal rule that prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law. [[exclusionary_rule]]. * **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 court order demanding that a public official deliver an imprisoned individual to the court and show a valid reason for that person's detention. [[habeas_corpus]]. * **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]]. * **Supreme Court:** The highest federal court in the United States, with final appellate jurisdiction over all federal and state court cases that involve a point of federal law. [[supreme_court]]. * **Uniform Code of Military Justice (UCMJ):** The foundation of military law in the United States. [[uniform_code_of_military_justice]]. * **Unlawful Combatant:** A person who directly participates in hostilities without being entitled to prisoner-of-war status upon capture. [[unlawful_combatant]]. * **War Crimes:** An action carried out during the conduct of a war that violates accepted international rules of war. [[war_crimes]]. ===== See Also ===== * [[habeas_corpus]] * [[due_process]] * [[law_of_war]] * [[court-martial]] * [[uniform_code_of_military_justice]] * [[geneva_conventions]] * [[commander-in-chief]]