For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31600 ------------------------------------------------------------------------------ Order Code RL31600 The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice Updated September 25, 2006 Jennifer K. Elsea Legislative Attorney American Law Division The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice Summary November 13, 2001, President Bush issued a Military Order (M.O.) pertaining to the detention, treatment, and trial of certain non-citizens in the war against terrorism. Military commissions pursuant to the M.O. began in November, 2004, against four persons declared eligible for trial, but proceedings were suspended after a federal district court found one of the defendants could not be tried under the rules established by the Department of Defense. The D.C. Circuit Court of Appeals reversed that decision, Rumsfeld v. Hamdan, but the Supreme Court granted review and reversed the decision of the Court of Appeals. Military commissions will not be able to go forward until the Department of Defense revises its rules to conform with the Supreme Court's Hamdan opinion or Congress approves legislation conferring authority to promulgate rules that depart from the strictures of the Uniform Code of Military Justice (UCMJ) and U.S. international obligations. The M.O. has been the focus of intense debate both at home and abroad. Critics argued that the tribunals could violate the rights of the accused under the Constitution as well as international law, thereby undercutting the legitimacy of any verdicts rendered by the tribunals. The Administration responded by publishing a series of military orders and instructions clarifying some of the details. The procedural aspects of the trials were published in Military Commission Order No. 1 ("M.C.O. No. 1"). The Department of Defense also released two more orders and nine "Military Commission Instructions," which set forth the elements of some crimes that may be tried, establish guidelines for civilian attorneys, and provide other administrative guidance. These rules were praised as a significant improvement over what might have been permitted under the M.O., but some argued that the enhancements do not go far enough, and the Supreme Court held that the amended rules did not comply with the UCMJ. This report provides a background and analysis comparing military commissions as envisioned under M.C.O. No. 1 to general military courts-martial conducted under the UCMJ. A summary of the Hamdan case follows, in particular the shortcomings identified by the Supreme Court. The report provides an overview of legislation (H.R. 6054, S. 3901, S. 3930, S. 3861, and S. 3886). Finally, the report provides two charts to compare the regulations issued by the Department of Defense to standard procedures for general courts-martial under the Manual for Courts-Martial and to proposed legislation. The second chart, which compares procedural safeguards incorporated in the regulations with established procedures in courts-martial, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts, in order to facilitate comparison with safeguards provided in federal court and international criminal tribunals. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Military Commissions: General Background . . . . . . . . . . . . . . . . . . . . 2 Military Commissions at Guantánamo Bay . . . . . . . . . . . . . . . . . . . . . . 2 Hamdan v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Department of Defense Rules for Military Commissions . . . . . . . . . . . . . . 10 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Composition and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Procedures Accorded the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Post-Trial Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Military Commission Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Subject Matter Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Evidentiary Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Post-Trial Procedure and Interlocutory Appeals . . . . . . . . . . . . . . . . . 38 List of Tables Table 1. Comparison of Courts-Martial and Military Commission Rules . . . . . 40 Table 2. Comparison of Procedural Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . 48 The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice Introduction Rasul v. Bush, issued by the U.S. Supreme Court at the end of its 2003-2004 term, clarified that U.S. courts do have jurisdiction to hear petitions for habeas corpus on behalf of the approximately 550 persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism,1 establishing a role for federal courts to play in determining the validity of the military commissions convened pursuant to President Bush's Military Order (M.O.) of November 13, 2001.2 After dozens of petitions for habeas corpus were filed in the federal District Court for the District of Columbia, Congress passed the Detainee Treatment Act of 2005 (DTA),3 revoking federal court jurisdiction over habeas claims, at least with respect to those not already pending, and created jurisdiction in the Court of Appeals for the District of Columbia Circuit to hear appeals of final decisions of military commissions. The Supreme Court overturned a decision by the D.C. Circuit that had upheld the military commissions, Hamdan v. Rumsfeld,4 holding instead that although Congress has authorized the use of military 1 Rasul v. Bush, 124 S. Ct. 2686 (2004). For a summary of Rasul and related cases, see CRS Report RS21884, The Supreme Court and Detainees in the War on Terrorism: Summary and Analysis of Recent Decisions; CRS Report RS22466, Hamdan v. Rumsfeld: Military Commissions in the `Global War on Terrorism,' by Jennifer K. Elsea. 2 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism §1(a), 66 Fed. Reg. 57,833 (Nov. 16, 2001) (hereinafter "M.O."). 3 P.L. 109-148, §1005(e)(1) amends 28 U.S.C. § 2441 to provide that "no court ... shall have jurisdiction to hear or consider ... an application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay." However, it creates new, albeit limited, jurisdiction in the D.C. Cir. to hear challenges of "any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant" as well as reviews of "final decisions of military commissions," which are discretionary unless the sentence is greater than ten years or involves the death penalty. DTA § 1005(e)(2-3). 4 Hamdan v. Rumsfeld, 548 U.S. __ (2006), rev'g 415 F.3d 33 (D.C. Cir. 2005). The Court found that the DTA does not apply to Hamdan's petition, which was an appeal of an interlocutory ruling rather than the final decision of a military commission, but did not resolve whether it affects other pending cases that fall under the DTA's provisions regarding final review of Combatant Status Review Tribunals. Slip op. at 19, and n.14. CRS-2 commissions, such commissions must follow procedural rules as similar as possible to courts-martial proceedings, in compliance with the Uniform Code of Military Justice (UCMJ).5 Military Commissions: General Background. Military commissions are courts usually set up by military commanders in the field to try persons accused of certain offenses during war.6 They are distinct from military courts-martial, which are panels set up to try U.S. service members (and during declared wars, civilians accompanying the armed forces) under procedures prescribed by Congress in the UCMJ. U.S. service members charged with a war crime are normally tried before courts-martial but may also be tried by military commission or in federal court, depending on the nature of the crime charged.7 All three options are also available to try certain other persons for war crimes. Federal and state criminal statutes and courts are available to prosecute specific criminal acts related to terrorism that may or may not be triable by military commission. Military commissions trying enemy belligerents for war crimes directly apply the international law of war, without recourse to domestic criminal statutes, unless such statutes are declaratory of international law.8 Historically, military commissions have applied the same set of procedural rules that applied in courts-martial.9 Military Commissions at Guantánamo Bay. The President's Military Order establishing military commissions to try suspected terrorists has been the focus of intense debate both at home and abroad. Critics argued that the tribunals could violate any rights the accused may have under the Constitution as well as their rights under international law, thereby undercutting the legitimacy of any verdicts rendered by the tribunals. The Administration initially responded that the M.O. provided only the minimum requirements for a full and fair trial, and that the Secretary of Defense intended to establish rules prescribing detailed procedural safeguards for tribunals established pursuant to the M.O. The procedural rules released in March 2002 were praised as a significant improvement over what might have been permitted under the language of the M.O., but some continued to argue that the enhancements do not go far enough and that the checks and balances of a separate rule-making authority and 5 10 U.S.C. § 801 et seq. 6 See CRS Report RL31191, Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions (providing a general background of U.S. history of military commissions), by Jennifer Elsea. 7 See 10 U.S.C. § 818; 18 U.S.C. §2441. 8 See U.S. Army Field Manual (FM) 27-10, The Law of Land Warfare, section 505(e) [hereinafter "FM 27-10"]. 9 See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 841-42 (2d ed. 1920)(noting that "in the absence of any statute or regulation," the same principles and procedures commonly govern, though possibly more "liberally construed and applied"); David Glazier, Note, Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military Commission, 89 VA. L. REV. 2005 (2003). CRS-3 an independent appellate process are necessary.10 The release of the Military Commission Instructions sparked renewed debate, especially concerning the restrictions on civilian attorneys,11 resulting in further modifications to the rules. Critics noted that the rules do not address the issue of indefinite detention without charge, as appears to be possible under the original M.O.,12 or that the Department of Defense may continue to detain persons who have been cleared by a military commission.13 The Pentagon has stated that its Inspector General (IG) looked into allegations, made by military lawyers assigned as prosecutors to the military commissions, that the proceedings are rigged to obtain convictions, but the IG did not substantiate the charges.14 The Department of Defense (DOD) has released ten "Military Commission Instructions" ("M.C.I. No. 1-10")15 to elaborate on the set of procedural rules to govern military tribunals. Those rules are set forth in Military Commission Order No. 1 ("M.C.O. No. 1"), issued in March 2002 and amended in 2005.16 The instructions set forth the elements of some crimes that may be tried by military commission, establish guidelines for civilian attorneys, and provide other administrative guidance and procedures for military commissions. Additionally, Major General John D. Altenburg, Jr. (retired), the Appointing Authority for the commissions, issued several Appointing Authority Regulations, governing disclosure of communications, interlocutory motions, and professional responsibility. 10 See Letter from Timothy H. Edgar, ACLU Legislative Counsel, Military Commission Order No. 1, March 21, 2002 (April 16, 2002), available at [http://www.aclu.org/National Security/NationalSecurity.cfm?ID=10150&c=111] (last visited July 21, 2006); American College of Trial Lawyers, Report on Military Commissions for the Trial of Terrorists, March 2003 [hereinafter "ACTL"], available at [http://www.actl.com/AM/Template.cfm ?Section=All_Publications&Template=/CM/ContentDisplay.cfm&ContentFileID=63] (last visited July 21, 2006); ACTL, Supplemental Report on Military Commissions for the Trial of Terrorists, Oct. 2005, online at [http://www.actl.com/AM/Template.cfm?Section=Home &template=/CM/ContentDisplay.cfm&ContentID=2152] (last visited July 21, 2006). 11 The president of the National Association of Criminal Defense Lawyers (NACDL) announced that NACDL "cannot advise its members to act as civilian counsel" because it deems the rules too restrictive to allow for zealous and professional representation on their part. See Lawrence Goldman, Guantanamo: Little Hope for Zealous Advocacy, NACDL CHAMPION, July 2003, at 4, available at [http://www.nacdl.org/public.nsf/Champion Articles/A0307p04?OpenDocument] (last visited July 21, 2006). 12 The Administration has not explicitly used this authority; instead, it says the prisoners are being held as "enemy combatants" pursuant to the law of war. 13 See Bruce Zagaris, U.S. Defense Department Issues Order on Military Commissions, 18 No. 5 INT'L ENFORCEMENT L. REP 215 (2002) (citing comments by DOD chief counsel William J. Haynes II to a New York Times reporter). 14 See Neil A. Lewis, Two Prosecutors Faulted Trials For Detainees, NEW YORK TIMES, August 1, 2005, at A1. 15 Department of Defense ("DOD") documents related to military commissions are available online at [http://www.defenselink.mil/news/commissions.html] (last visited July 24, 2006). 16 Reprinted at 41 I.L.M. 725 (2002). The most recent version was issued Aug. 31, 2005. CRS-4 In August 2005, DOD amended M.C.O. No. 1 to make the presiding officer function more like a judge and to have other panel members function more like a jury. Under the new rules, the presiding officer was assigned the responsibility of determining most questions of law while the other panel members were to make factual findings and decide any sentence, similar to courts-martial proceedings. Other provisions were modified to clarify the accused's privilege to be present except when necessary to protect classified information and only in instances where the presiding officer concludes that the admission of such evidence would not prejudice a fair trial and to require that the presiding officer exclude any evidence that would result in the denial of a full and fair trial from lack of access to the information.17 President Bush determined that twenty of the detainees at the U.S. Naval Station in Guantánamo Bay are subject to the M.O. and may consequently be charged and tried before military commissions.18 Six detainees declared eligible in 2003 included two citizens of the U.K. and one Australian citizen.19 After holding discussions with the British and Australian governments regarding the trial of their citizens, the Administration agreed that none of those three detainees will be subject to the death penalty.20 The Administration agreed to modify some of the rules with respect to trials of Australian detainees21 and agreed to return the U.K. citizens, including the two who had been declared eligible for trial by military commission, to Great Britain.22 The Administration agreed to return one Australian citizen, but another, David Hicks has been charged with conspiracy to commit war crimes; attempted 17 See Press Release, Department of Defense, Secretary Rumsfeld Approves Changes to Improve Military Commission Procedures (Aug. 31, 2005), available at [http://www.defenselink.mil/releases/2005/nr20050831-4608.html] (last visited July 21, 2006). 18 See Press Release, Department of Defense, President Determines Enemy Combatants Subject to His Military Order (July 3, 2003), available at [http://www.defenselink.mil/ releases/2003/nr20030703-0173.html] (last visited July 21, 2006). According to the Defense Department, that determination is effectively "a grant of [military] jurisdiction over the person." See John Mintz, 6 Could Be Facing Military Tribunals, WASH. POST, July 4, 2003, at A1. In 2004, nine additional detainees were determined to be eligible. See Press Release, Department of Defense, Presidential Military Order Applied to Nine more Combatants (July 7, 2004), available at [http://www.defenselink.mil/releases/2004/nr20040707-0987.html] (last visited July 21, 2006). In November 2005, five more detainees were charged. See Press Release, Department of Defense, Military Commission Charges Approved (November 7, 2005), available at [http://www.defenselink.mil/releases/2005/nr20051107-5078.html] (last visited July 21, 2006). 19 See John Mintz and Glenn Frankel, 2 Britons, Australian Among Six Facing Trial, WASH. POST, July 5, 2003, at A13. 20 See Press Releases, Department of Defense, Statement on British Detainee Meetings and Statement on Australian Detainee Meetings (July 23, 2003), available at [http://www.defenselink.mil/news/Aug2004/ commissions_releases.html] (last visited July 21, 2006). 21 See Press Release, Department of Defense, U.S. and Australia Announce Agreements on Guantanamo Detainees (Nov. 25, 2003), available at [http://www.defenselink.mil/releases/ 2003/nr20031125-0702.html] (last visited July 21, 2006). 22 See Ed Johnson, British Guantanamo Detainees to Be Freed, AP, Jan. 11, 2005. CRS-5 murder by an unprivileged belligerent and aiding the enemy.23 One citizen from Yemen and one from the Sudan were formally charged with conspiracy to commit certain violations of the law of war (and other crimes triable by military commission).24 Salim Ahmed Hamdan of Yemen, accused of providing physical security for Osama bin Laden and other high ranking Al Qaeda members and charged with conspiracy to attack civilians, commit murder by an unprivileged belligerent and terrorism,25 provided the Supreme Court its first opportunity to address the validity of the military commissions. Hamdan v. Rumsfeld Salim Ahmed Hamdan, who was captured in Afghanistan and is alleged to have worked for Osama Bin Laden as a body guard and driver, brought this challenge to the lawfulness of the Secretary of Defense's plan to try him for alleged war crimes before a military commission,26 arguing that the military commission rules and procedures were inconsistent with the UCMJ27 and that he had the right to be treated as a prisoner of war under the Geneva Conventions.28 U.S. District Judge Robertson agreed, finding no inherent authority in the President as Commander-in-Chief of the Armed Forces to create such tribunals outside of the existing statutory authority, with which the military commission rules did not comply. He also concluded that the Geneva Conventions apply to the whole of the conflict in Afghanistan, including 23 See Press Release, Department of Defense, Guantanamo Detainee Charged (June 10, 2004), available at [http://www.defenselink.mil/releases/2004/nr20040610-0893.html] (last visited July 21, 2006). Justice Stevens found for a plurality in the Hamdan case that "conspiracy" is not an "offense triable by military commission" within the meaning of the UCMJ. 24 Press Release, Department of Defense, Two Guantanamo Detainees Charged (Feb. 24, 2004), available at [http://www.defenselink.mil/releases/2004/nr20040224-0363.html] (last visited July 21, 2006). The two defendants are charged with "willfully and knowingly joining an enterprise of persons who shared a common criminal purpose and conspired with Osama bin Laden and others to commit the following offenses: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism." One of the detainees filed for a writ of prohibition and writ of mandamus with the U.S. Court of Appeals for the Armed Forces (CAAF) in an effort to halt the military commission proceedings, but the CAAF dismissed the petition without prejudice in January, 2005. Al Qosi v. Altenburg, 60 M.J. 461(2005). 25 Press Release, Department of Defense, Additional Military Commission Charges Referred (July 14, 2004), available at [http://www.defenselink.mil/releases/2004/nr20040714- 1030.html] (last visited July 21, 2006). 26 344 F.Supp.2d 152 (D. D.C. 2004), rev'd 415 F.3d 33 (D.C. Cir. 2005), cert. granted 2005 U.S. LEXIS 8222 (Nov. 7, 2005). 27 10 U.S.C. §§ 801 et seq. 28 There are four Conventions, the most relevant of which is The Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3317 (hereinafter "GPW"). CRS-6 under their protections all persons detained in connection with the hostilities there,29 and that Hamdan was thus entitled to be treated as a prisoner of war until his status was determined to be otherwise by a competent tribunal, in accordance with article 5 of the Third Geneva Convention (prisoners of war). Interpreting the UCMJ in light of the Geneva Conventions, which permits the punishment of prisoners of war "only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power,"30 Judge Robertson found no congressional authority for Hamdan's trial under the DOD's rules for military commissions. Hamdan, he ruled, was not "an offender triable by military tribunal under the law of war" within the meaning of UCMJ art 21.31 Further, he found the rules established by DOD to be fatally inconsistent with the UCMJ, contrary to UCMJ art. 3632 because they give military authorities the power to exclude the accused from hearings and deny him access to evidence presented against him.33 The government appealed, arguing that the district court should not have interfered in the military commission prior to its completion, that Hamdan is not entitled to protection from the Geneva Conventions, and that the President has inherent authority to establish military commissions, which need not conform to statutes regulating military courts-martial.34 The D.C. Circuit Court of Appeals rejected the government's argument that the federal courts had no jurisdiction to interfere in ongoing commission proceedings, but otherwise agreed with the government. Writing for a unanimous court, Judge Randolph reversed the lower court's finding, ruling that the Geneva Conventions are not judicially enforceable,35 that even if they were, Hamdan is not entitled to their protections, and that in any event, the military commission would qualify as a "competent tribunal" where Hamdan may challenge his non-POW status, within the meaning of U.S. Army regulations implementing the Conventions.36 The appellate court did not accept the government's argument that the President has inherent authority to create military commissions without any authorization from Congress, but found such authority in the Authorization to Use Military Force 29 344 F.Supp.2d at 161. 30 GPW art. 102. 31 344 F.Supp.2d at 158-59. 32 10 U.S.C. § 836 (procedures for military commissions may not be "contrary to or inconsistent with" the UCMJ). 33 344 F.Supp.2d at 166. 34 See Brief for Appellants, Hamdan v. Rumsfeld, No. 04-5393 (D.C. Cir.). 35 Rumsfeld v. Hamdan, 415 F.3d 33, 39-40 (D.C. Cir. July 15, 2005). 36 Id. at 19. CRS-7 (AUMF),37 read together with UCMJ arts. 21 and 36.38 The court interpreted art. 36 to mean that military commission rules have only to be consistent with those articles of the UCMJ that refer specifically to military commissions, and not that Congress meant to incorporate procedural rules for courts-martial into those applicable to military commissions. However, because the procedural rules to be used by the military commissions did not, in its view, affect jurisdiction, the court found it unnecessary to resolve the issue at the interlocutory stage of the case. With respect to the Geneva Conventions, the D.C. Circuit cited to a footnote from the World War II Eisentrager39 opinion that expresses doubt that the Court could grant relief based directly on the 1929 Geneva Convention: We are not holding that these prisoners have no right which the military authorities are bound to respect. The United States, by the Geneva Convention of July 27, 1929, 47 Stat. 2021, concluded ... an agreement upon the treatment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is, however, the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.40 Judge Williams wrote a concurring opinion, agreeing with the government's conception of the conflict with Al Qaeda as separate from the conflict with the Taliban but construing Common Article 3 to apply to any conflict with a non-state actor, without regard to the geographical confinement of such a conflict within the borders of a signatory state. Supreme Court nominee John G. Roberts concurred in the opinion without writing separately. The Supreme Court granted review and reversed. Before reaching the merits of the case, the Supreme Court dispensed with the government's argument that Congress had, by passing the Detainee Treatment Act 37 Authorization for Use of Military Force ("the AUMF"), P.L. 107-40, 115 Stat. 224 (2001). 38 Hamdan, 415 F.3d at 37. 39 Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that the federal courts did not have jurisdiction to hear a petition on behalf of German citizens who had been convicted by U.S. military commissions in China because the writ of habeas corpus was not available to "enemy alien[s], who at no relevant time and in no stage of [their] captivity [have] been within [the court's] jurisdiction"). The Supreme Court, in Rasul v. Bush, declined to apply Eisentrager to deny Guantánamo detainees the right to petition for habeas corpus. See Rasul at 2698 (finding authority for federal court jurisdiction in 28 U.S.C. § 2241, which grants courts the authority to hear applications for habeas corpus "within their respective jurisdictions," by any person who claims to be held "in custody in violation of the Constitution or laws or treaties of the United States"). 40 339 U.S. at 789 n.14. CRS-8 of 2005 (DTA),41 stripped the Court of its jurisdiction to review habeas corpus challenges by or on behalf of Guantanamo detainees whose petitions had already been filed.42 The government's argument that the petitioner had no rights conferred by the Geneva Conventions that could be adjudicated in federal court likewise did not persuade the Court to dismiss the case. Regardless of whether the Geneva Conventions provide rights that are enforceable in Article III courts, the Court found that Congress, by incorporating the "law of war" into UCMJ art. 21,43 brought the Geneva Conventions within the scope of law to be applied by courts. The Court disagreed that the Eisentrager case requires another result, noting that the Court there had decided the treaty question on the merits based on its interpretation of the Geneva Convention of 1929 and that the 1949 Conventions were drafted to reject that interpretation.44 Justice Scalia, joined by Justices Thomas and Alito, dissented, arguing that the DTA should be interpreted to preclude the Court's review. In response to the holding by the court below that Hamdan, as a putative member of al Qaeda, was not entitled to any of the protections accorded by the Geneva Conventions, the Court concluded that at the very least, Common Article 3 of the Geneva Conventions applies, even to members of al Qaeda, according to them a minimum baseline of protections, including protection from the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."45 Although recognizing that 41 P.L. 109-148, §1005(e)(1) provides that "no court ... shall have jurisdiction to hear or consider ... an application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay." The provision was not yet law when the appellate court decided against the petitioner, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev'd 548 U.S. __ (2006). At issue was whether this provision applies to pending cases. The Court found that the provision does not apply to Hamdan's petition, but did not resolve whether it affects other cases that fall under the DTA's provisions regarding final review of Combatant Status Review Tribunals. Slip op. at 19, and n.14. 42 Id. at 7. To resolve the question, the majority employed canons of statutory interpretation supplemented by legislative history, avoiding the question of whether the withdrawal of the Court's jurisdiction would constitute a suspension of the Writ of Habeas Corpus, or whether it would amount to impermissible "court-stripping." Justice Scalia, joined by Justices Alito and Thomas in his dissent, interpreted the DTA as a revocation of jurisdiction. 43 10 U.S.C. § 821 ("The provisions of [the UCMJ] conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals."). The Hamdan majority concluded that "compliance with the law of war is the condition upon which the authority set forth in Article 21 is granted." Hamdan, slip op. at 63. 44 Hamdan, slip op. at 63-65. 45 GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva Conventions and applies to any "conflict not of an international character." The majority declined to accept the President's interpretation of Common Article 3 as inapplicable to the conflict with al Qaeda and interpreted the phrase "in contradistinction to a conflict between (continued...) CRS-9 Common Article 3 "obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict" and that "its requirements are general ones, crafted to accommodate a wide variety of legal systems," the Court found that the military commissions under M.C.O. No. 1 do not meet these criteria. In particular, the military commissions are not "regularly constituted" because they deviate too far, in the Court's view, from the rules that apply to courts-martial, without a satisfactory explanation of the need for such deviation.46 With respect to the authority to create the military commissions, the Court held that any power to create them must flow from the Constitution and must be among those "powers granted jointly to the President and Congress in time of war."47 It disagreed with the government's position that Congress had authorized the commissions either when it passed the Authorization to Use Military Force (AUMF)48 or the DTA. Although the Court assumed that the AUMF activated the President's war powers, it did not view the AUMF as expanding the President's powers beyond the authorization set forth in the UCMJ. The Court also noted that the DTA, while recognizing the existence of military commissions, does not specifically authorize them. At most, these statutes "acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the `Constitution and laws,' including the law of war."49 In addition to limiting military commissions to trials of offenders and offenses that are by statute or by the law of war consigned to such tribunals, the UCMJ provides limitations with respect to the procedural rules that may be employed. Article 36 (10 U.S.C. § 836) authorizes the President to prescribe rules for "pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals." Such rules are to "apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts" insofar as the President "considers practicable" but that "may not be contrary to or inconsistent" with the UCMJ. In addition, rules made pursuant to this authority "shall be uniform insofar as practicable." The President had determined with respect to the military commissions that "it is impracticable to apply the rules and principles 45 (...continued) nations," which the Geneva Conventions designate a "conflict of international character." Hamdan, slip op. at 67. 46 Id. at 70 (plurality opinion); Id. (Kennedy, J., concurring) at 10. Justice Stevens, joined by Justices Ginsburg, Breyer, and Souter, further based their conclusion on the basis that M.C.O. No. 1 did not meet all criteria of art. 75 of Protocol I to the Geneva Conventions of 1949, adopted in 1977 (Protocol I). While the United States is not party to Protocol I, the plurality noted that many authorities regard it as customary international law. 47 Hamdan, slip op. at 27 (citing Congress's powers to "declare War ... and make Rules concerning Captures on Land and Water," Art. I, §8, cl. 11, to "raise and support Armies," id., cl. 12, to "define and punish ... Offences against the Law of Nations," id., cl. 10, and "To make Rules for the Government and Regulation of the land and naval Forces," id., cl. 14.). 48 P.L. 107-40, 115 Stat. 224 (2001). 49 Hamdan, slip op. at 30. CRS-10 of law that govern `the trial of criminal cases in the United States district courts'" but made no determination with respect to the practicability of applying rules different from those that apply in courts-martial.50 The Court interpreted article 36 to provide the President discretion to determine which federal court rules need not be applied by various military tribunals51 due to their impracticability. However, the Court read the uniformity requirement as according less discretion to the President to determine what is practicable when providing different rules for courts-martial, military commissions, and other military tribunals.52 Unlike the requirement for rules to track closely with federal court rules, which the President need follow only insofar as he deems practicable, the Court reasoned, the uniformity requirement applies unless its application is demonstrably impracticable. Thus, less deference was found owing, and the Court found that the government had failed to demonstrate that circumstances make any courts-martial rules impracticable for use in military commissions. Further, the Court found that some of the rules provided in the Defense Department rules set forth in Military Commission Order No. 1 ("M.C.O. No. 1"), in particular the provision allowing the exclusion of the defendant from attending portions of his trial or hearing some of the evidence against him, deviated substantially from the procedures that apply in courts- martial in violation of UCMJ article 36.53 Department of Defense Rules for Military Commissions M.C.O. No. 1 sets forth procedural rules for the establishment and operation of military commissions convened pursuant to the November 13, 2001, M.O. It addresses the jurisdiction and structure of the commissions, prescribes trial procedures, including standards for admissibility of evidence and procedural safeguards for the accused, and establishes a review process. The Hamdan Court found the rules insufficient to meet UCMJ standards and noted that the review process was not sufficiently independent of the armed services to warrant the Court's abstention until the petitioner's case was finally decided. M.C.O. No. 1 also contains various mechanisms for safeguarding sensitive government information, which the Court found problematic in that they could have permitted evidence to be withheld from the accused but nevertheless considered by the military commission. The Hamdan Court left open the possibility that the rules established by M.C.O. No. 1 would be valid if Congress were to explicitly approve them. 50 The government took the position that the "contrary to or consistent with" language applies only with respect to parts of the UCMJ that make specific reference to military commissions. 51 The term "military tribunal" in the UCMJ should be interpreted to cover all forms of military courts, encompassing courts-martial as well as military commissions. 52 Hamdan, slip op. at 59. 53 Id. at 61. Regarding the defendant's right to be present during trial, the Court stated, "[w]hether or not that departure technically is `contrary to or inconsistent with' the terms of the UCMJ, 10 U. S. C. §836(a), the jettisoning of so basic a right cannot lightly be excused as `practicable.'" CRS-11 Other orders and instructions may also call for specific congressional approval to remain valid. M.C.O. No. 3, "Special Administrative Measures for Certain Communications Subject to Monitoring," establishes procedures for authorizing and controlling the monitoring of communications between detainees and their defense counsel for security or intelligence-gathering purposes. M.C.O. No. 2 and 4 designate appointing officials. M.C.I. No. 1 provides guidance for interpretation of the instructions as well as for issuing new instructions. It states that the eight M.C.I. apply to all DOD personnel as well as prosecuting attorneys assigned by the Justice Department and all civilian attorneys who have been qualified as members of the pool. Failure on the part of any of these participants to comply with any instructions or other regulations "may be subject to the appropriate action by the Appointing Authority, the General Counsel of the Department of Defense, or the Presiding Officer of a military commission."54 "Appropriate action" is not further defined, nor is any statutory authority cited for the power.55 M.C.I. No. 1 also reiterates that none of the instructions is to be construed as creating any enforceable right or privilege. Jurisdiction. The President's M.O. has been criticized as overly broad in its assertion of jurisdiction, because it could be interpreted to cover non-citizens who have no connection with Al Qaeda or the terrorist attacks of September 11, 2001. It has been argued that the constitutional and statutory authority of the President to establish military tribunals does not extend any further than Congress' authorization to use armed force in response to the attacks.56 Under a literal interpretation of the M.O., however, the President may designate as subject to the order any non-citizen he believes has ever engaged in any activity related to international terrorism, no matter when or where these acts took place. A person subject to the M.O. may be detained and possibly tried by military tribunal for violations of the law of war and "other applicable law."57 M.C.O. No. 1 does not explicitly limit its coverage to the scope of the authorization of force, but it clarifies somewhat the ambiguity with respect to the offenses covered. M.C.O. No. 1 establishes that commissions may be convened to try aliens who are designated by the President as subject to the M.O., whether 54 M.C.I. No. 1 at § 4.C. 55 M.C.I. No. 1 lists 10 U.S.C. § 898 as a reference. That law, Article 98, UCMJ, Noncompliance with procedural rules, provides: Any person subject to this chapter who - (1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; or (2) knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before, during, or after trial of an accused; shall be punished as a court-martial may direct 56 P.L. 107-40, 115 Stat. 224 (2001) (authorizing military force against those who "planned, authorized, committed, [or] aided" the Sept. 11 attacks or who "harbored such ... persons"). 57 M.O. § 1(e) (finding such tribunals necessary to protect the United States and for effective conduct of military operations). CRS-12 captured overseas or on U.S. territory, for violations of the law of war and "all other offenses triable by military commissions." Although this language is somewhat narrower than "other applicable law," it remains vague. However, the statutory language recognizing the jurisdiction of military commissions is similarly vague, such that the M.C.O. does not appear on its face to exceed the statute with respect to jurisdiction over offenses. Justice Stevens, joined in that portion of the Hamdan opinion by only three other Justices, undertook an inquiry of military commission precedents to determine that "conspiracy" is not a valid charge. M.C.O. No. 1 does not resolve the issue of whether the President may, consistent with the Constitution, direct that criminal statutes defined by Congress to be dealt with in federal court be redefined as "war crimes" to be tried by the military, but the Hamdan decision may be interpreted to counsel against such an interpretation. By statute, military tribunals may be used to try "offenders or offenses designated by statute or the law of war."58 There are only two statutory offenses for which convening a military commission is explicitly recognized: aiding the enemy and spying (in time of war).59 It appears that "offenses designated by the law of war" are not necessarily synonymous with "offenses against the law of war." Military tribunals may also be used to try civilians in occupied territory for ordinary crimes.60 During a war, they may also be used to try civilians for committing belligerent acts, even those for which lawful belligerents would be entitled to immunity under the law of war, but only where martial law or military government may legally be exercised or on the battlefield,61 where civilian courts are closed.62 Such acts are not necessarily 58 10 U.S.C. § 821. 59 10 U.S.C. §§ 904 and 906, respectively. The circumstances under which civilians accused of aiding the enemy may be tried by military tribunal have not been decided, but a court interpreting the article may limit its application to conduct committed in territory under martial law or military government, within a zone of military operations or area of invasion, or within areas subject to military jurisdiction. See FM 27-10, supra note 8, at para. 79(b)(noting that treason and espionage laws are available for incidents occurring outside of these areas, but are triable in civil courts). Spying is not technically a violation of the law of war, however, but violates domestic law and traditionally may be tried by military commission. See id. at para. 77 (explaining that spies are not punished as "violators of the law of war, but to render that method of obtaining information as dangerous, difficult, and ineffective as possible"). 60 See, e.g., United States v. Schultz, 4 C.M.R. 104, 114 (1952)(listing as crimes punishable under the law of war, in occupied territory as murder, manslaughter, robbery, rape, larceny, arson, maiming, assaults, burglary, and forgery). 61 See WINTHROP, supra note 9, at 836. See NATIONAL INSTITUTE OF MILITARY JUSTICE, ANNOTATED GUIDE: PROCEDURES FOR TRIALS BU MILITARY COMMISSIONS OF CERTAIN NON-UNITED STATES CITIZENS IN THE WAR AGAINST TERRORISM 10-11 (hereinafter "NIMJ")(noting that civilians in occupied Germany after World War II were sometimes tried by military commission for ordinary crimes unrelated to the laws of war). Military trials of civilians for crimes unrelated to the law of war on U.S. territory under martial law are permissible only when the courts are not functioning. See Duncan v. Kahanamoku, 327 U.S. 304 (1945). 62 See id. (citing Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)). Winthrop notes that the (continued...) CRS-13 offenses against the law of war (that is, they do not amount to an international war crime), but are merely unprivileged under it, although courts and commentators have tended to use the terms interchangeably. Justice Stevens opined for the plurality that military commissions in the present circumstances have jurisdiction only for belligerent offenses and that martial law and military occupation courts will not serve as precedent for jurisdiction purposes.63 Some argue that civilians, including unprivileged combatants unaffiliated with a state (or other entity with "international personality" necessary for hostilities to amount to an "armed conflict"), are not directly subject to the international law of war and thus may not be prosecuted for violating it.64 They may, however, be prosecuted for most belligerent acts under ordinary domestic law, irrespective of whether such an act would violate the international law of war if committed by a soldier. Under international law, those offenders who are entitled to prisoner of war (POW) status under the Third Geneva Convention ["GPW"] are entitled to be tried by court-martial and may not be tried by a military commission offering fewer safeguards than a general court-martial, even if those prisoners are charged with war crimes.65 In the case of a non-international conflict, Common Article 3 of the Geneva Conventions protects even non-POWs from the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."66 62 (...continued) limitations as to place, time, and subjects were not always strictly followed, mentioning a Civil War case in which seven persons who had conspired to seize a U.S. merchant vessel at Panama were captured and transported to San Francisco for trial by military commission. Id. at 837 (citing the pre-Milligan case of T.E. Hogg). 63 Hamdan, slip op. at 33-34. 64 See Leila Nadya Sadat, Terrorism and the Rule of Law, 3 WASH. U. GLOBAL STUD. L. REV. 135 (2004)(arguing that no armed conflict exists with respect to terrorists, making the law of war inapplicable to them). 65 The Geneva Convention Relative to the Treatment of Prisoners of War [hereinafter "GPW"] art. 102 states: A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed. 6 U.S.T. 3317. The Supreme Court finding to the contrary in In re Yamashita, 327 U.S. 1 (1946), is likely superceded by the 1949 Geneva Convention. For more information about the treatment of prisoners of war, see CRS Report RL31367, Treatment of "Battlefield Detainees" in the War on Terrorism. 66 GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva Conventions and applies to any "conflict not of an international character." The Hamdan majority declined to accept the President's interpretation of Common Article 3 as inapplicable to the conflict with al Qaeda and interpreted the phrase "in contradistinction to a conflict between nations," which the Geneva Conventions designate a "conflict of international character". Hamdan, slip op. at 67. The Court did not expressly decide whether the Global War on Terror (GWOT) is international or non-international for the (continued...) CRS-14 Subject-Matter Jurisdiction. M.C.I. No. 2, Crimes and Elements for Trials by Military Commission, details some of the crimes that might be subject to the jurisdiction of the commissions. Unlike the rest of the M.C.I. issued so far, this instruction was published in draft form by DOD for outside comment. The final version appears to have incorporated some of the revisions, though not all, suggested by those who offered comments.67 The revision clarifies that the burden of proof is on the prosecution, precludes liability for ex post facto crimes,68 adds two new war crimes, and clearly delineates between war crimes and "other offenses triable by military commission." M.C.I. No. 2 clarifies that the crimes and elements derive from the law of war, but does not provide any references to international treaties or other sources that comprise the law of war. The instruction does not purport to be an exhaustive list; it is intended as an illustration of acts punishable under the law of war69 or triable by military commissions.70 "Aiding the enemy" and "spying" are included under the latter group, but are not defined with reference to the statutory authority in UCMJ articles 104 and 106 (though the language is very similar).71 Terrorism is also 66 (...continued) purposes of the Geneva Convention, but merely that it is one or the other. 67 See NATIONAL INSTITUTE OF MILITARY JUSTICE, MILITARY COMMISSION INSTRUCTIONS SOURCEBOOK 95 (2003) [hereinafter "SOURCEBOOK"]. DOD has not made public an exact account of who provided comments to the instruction, but some of them are published in the Sourcebook. 68 See M.C.I. No. 2 § 3(A) ("No offense is cognizable in a trial by military commission if that offense did not exist prior to the conduct in question."). 69 Crimes against the law of war listed in M.C.I. No. 2 are: 1) Willful Killing of Protected Persons; 2) Attacking Civilians; 3) Attacking Civilian Objects; 4) Attacking Protected Property; 5) Pillaging; 6) Denying Quarter; 7) Taking Hostages; 8) Employing Poison or Analogous Weapons; 9) Using Protected Persons as Shields; 10) Using Protected Property as Shields; 11) Torture; 12) Causing Serious Injury; 13) Mutilation or Maiming; 14) Use of Treachery or Perfidy; 15) Improper Use of Flag of Truce; 16) Improper Use of Protective Emblems; 17) Degrading Treatment of a Dead Body; and 18) Rape. 70 Crimes "triable by military commissions" include 1) Hijacking or Hazarding a Vessel or Aircraft; 2) Terrorism; 3) Murder by an Unprivileged Belligerent; 4) Destruction of Property by an Unprivileged Belligerent; 5) Aiding the Enemy; 6) Spying; 7) Perjury or False Testimony; and 8) Obstruction of Justice Related to Military Commissions. Listed as "other forms of liability and related offenses" are: 1) Aiding or Abetting. 2) Solicitation; 3) Command/Superior Responsibility - Perpetrating; 4) Command/Superior Responsibility - Misprision; 5) Accessory After the Fact; 6) Conspiracy; and 7) Attempt. 71 Ordinarily, the charge of "aiding the enemy" would require the accused have allegiance to the party whose enemy he has aided. DOD added a comment to this charge explaining that the wrongfulness requirement may necessitate that "in the case of a lawful belligerent, the accused owe allegiance or some duty to the United States or an ally or coalition partner..." such as "citizenship, resident alien status, or a contractual relationship with [any of these countries]." M.C.I. No.2 §6(A)(5)(b)(3). It is unclear what is meant by limiting the requirement to "a lawful belligerent." It could be read to make those persons considered the "enemy" also subject to trial for "aiding the enemy,"as is the case with Australian detainee (continued...) CRS-15 defined without reference to the statutory definition in title 18, U.S. Code.72 Although the Supreme Court long ago stated that charges of violations of the law of war tried before military commissions need not be as exact as those brought before regular courts,73 it appears that the current Court will look more favorably on prosecutions where charges are fully supported by precedent. It appears that "offenses triable by military commissions" in both the M.O. and M.C.O. No. 1 could cover ordinary belligerent acts carried out by unlawful combatants, regardless of whether they are technically war crimes. The draft version of M.C.I. No. 2 made explicit that Even an attack against a military objective that normally would be permitted under the law of armed conflict could serve as the basis for th[e] offense [of terrorism] if the attack itself constituted an unlawful belligerency (that is, if the attack was committed by an accused who did not enjoy combatant immunity). Thus, under the earlier draft language, it appeared that a Taliban fighter who attacked a U.S. or coalition soldier, or perhaps even a soldier of the Northern Alliance prior to the arrival of U.S. forces, for example, could be charged with "terrorism" and tried by a military tribunal.74 However, the final version of M.C.I. No.2 substituted the following language: The requirement that the conduct be wrongful for this crime necessitates that the conduct establishing the offense not constitute an attack against a lawful military objective undertaken by military forces of a State in the exercise of their official duties. The change appears to have eliminated the possibility that Taliban fighters could be charged with "terrorism" in connection with combat activities; however, under the DOD rules, such a fighter could still be charged with murder or destruction of 71 (...continued) David Hicks. See United States v. Hicks, Charge Sheet, available online at [http://www.defenselink.mil/news/Jun2004/d20040610cs.pdf] (last visited July 21, 2006). 72 18 U.S.C. § 2331 et seq. defines and punishes terrorism, providing exclusive jurisdiction to federal courts. See id. at 35 (letter from National Association of Criminal Defense Lawyers (NACDL) noting that Congress has defined war crimes in 18 U.S.C. § 2441 with reference to specific treaties). 73 327 U.S. at 17 ("Obviously charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment."). 74 M.C.I. No. 2 § 6(18). One of the elements of the crime of terrorism is that the "accused did not enjoy combatant immunity or an object of the attack was not a military objective." Another element required that "the killing or destruction was an attack or part of an attack designed to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government." The final version of the M.C.I. omits the reference to "affect[ing] the conduct of a government." CRS-16 property "by an unprivileged belligerent"75 for participating in combat, as long as the commission finds that the accused "did not enjoy combatant immunity," which, according the to the instruction, is enjoyed only by "lawful combatants."76 "Lawful combatant" is not further defined. Inasmuch as the President had declared that all of the detainees incarcerated at Guantánamo Bay, whether members of the Taliban or members of Al Qaeda, are unlawful combatants, it appears unlikely that the defense of combat immunity would be available.77 It is unclear whether other defenses, such as self-defense or duress, would be available to the accused. M.C.I. No. 2 states that such defenses may be available, but that "[i]n the absence of evidence to the contrary, defenses in individual cases are presumed not to apply."78 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.79 It has not traditionally been applied to conduct occurring on the territory of neutral states or on the territory of a belligerent that lies outside the zone of battle, to conduct that preceded the outbreak of hostilities, or to conduct during hostilities that do not amount to an armed conflict. With respect to the international conflict in Afghanistan, in which coalition forces ousted the Taliban government, it appears relatively clear when and where the law of war would apply. The war on terrorism, however, does not have clear boundaries in time or space,80 nor 75 M.C.I. No. 2 § 6(19). 76 Under M.C.I. No. 2, the lack of combatant immunity is considered an element of some of the crimes rather than a defense, so the prosecutor has the burden of proving its absence. 77 Whether the prisoners at Guantánamo Bay should be considered lawful combatants with combatant immunity is an issue of some international concern. See generally CRS Report RL31367, Treatment of `Battlefield Detainees' in the War on Terrorism. DOD's original draft included the requirement that a lawful combatant be part of the "armed forces of a legitimate party to an armed conflict." The Lawyers' Committee for Human Rights (now known as Human Rights First or "HRF") and Human Rights Watch ("HRW") urged DOD to revise the definition in line with the Geneva Convention. See SOURCEBOOK, supra note 67, at 50-51 and 59. The revised version leaves ambiguous who might be a "lawful combatant." 78 M.C.I. No. 2 § 4(B). The American Civil Liberties Union (ACLU) objected to this provision in its comments on the DOD draft, remarking that it "not only places the ordinary burden on the accused to going forward with evidence that establishes affirmative defense, but it also appears to place an unprecedented burden on the accused to overcome the presumption that the defenses do not apply." See SOURCEBOOK, supra note 67, at 69. 79 See WINTHROP, supra note 9, at 773 (the law of war "prescribes the rights and obligations of belligerents, or ... define[s] the status and relations not only of enemies -- whether or not in arms -- but also of persons under military government or martial law and persons simply resident or being upon the theatre of war, and which authorizes their trial and punishment when offenders"); id at 836 (military commissions have valid jurisdiction only in theater of war or territory under martial law or military government). 80 It may be argued that no war has a specific deadline and that all conflicts are in a sense indefinite. In traditional armed conflicts, however, it has been relatively easy to identify when hostilities have ended; for example, upon the surrender or annihilation of one party, an annexation of territory under dispute, an armistice or peace treaty, or when one party to (continued...) CRS-17 is it entirely clear who the belligerents are. The broad reach of the M.O. to encompass conduct and persons customarily subject to ordinary criminal law evoked criticism that the claimed jurisdiction of the military commissions exceeds the customary law of armed conflict, which M.C.I. No. 2 purports to restate.81 Any military commissions established to comply with Hamdan will likely have a better chance of withstanding court scrutiny if they are supported by ample precedent or explicit statutory definition. A common element among the crimes enumerated in M.C.I. No.2 is that the conduct "took place in the context of and was associated with armed conflict." The instruction explains that the phrase requires a "nexus between the conduct and armed hostilities,"82 which has traditionally been a necessary element of any war crime. However, the definition of "armed hostilities" is broader than the customary definition of war or "armed conflict." "Armed hostilities" need not be a declared war or "ongoing mutual hostilities."83 Instead, any hostile act or attempted hostile act might have sufficient nexus if its severity rises to the level of an "armed attack," or if it is intended to contribute to such acts. Some commentators have argued that the expansion of "armed conflict" beyond its customary bounds improperly expands the jurisdiction of military commissions beyond those that by statute or under the law of war are triable by military commissions.84 The Supreme Court has not clarified the scope of the "Global War on Terrorism" but seems to have demonstrated a willingness to address the issue rather than deferring to the President's interpretation. The definition for "Enemy" provided in M.C.I. No. 2 raises similar issues. According to § 5(B), "Enemy" includes any entity with which the United States or allied forces may be engaged in armed conflicts or which is preparing to attack the United States. It is not limited to foreign nations, or foreign military organizations or members thereof. "Enemy" specifically includes any organization of terrorists with international reach. 80 (...continued) the conflict unilaterally withdraws its forces. See GERHARD VON GLAHN, LAW AMONG NATIONS 722-730 (6th ed. 1992). 81 See Human Rights First, Trial Under Military Order, A Guide to the Final Rules for Military Commissions (revised May 2006)[hereinafter "HRF"], available at [http://www.humanrightsfirst.org/us_law/PDF/detainees/trials_under_order0604.pdf]] (last visited July 21, 2006); Sadat, supra note 64, at 146 (noting possibly advantageous domestic aspects of treating terrorist attacks as war crimes, but identifying possible pitfalls of creating a new international legal regime). 82 M.C.I. No. 2 § 5(C). 83 Id. 84 See SOURCEBOOK, supra note 67, at 38-39 (NACDL comments); id. at 51 (Human Rights Watch (HRW) comments); id. at 59-60 (LCHR). However, M.C.I. No. 9 lists among possible "material errors of law" for which the Reviewing Panel might return a finding for further procedures, "a conviction of a charge that fails to state an offense that by statute or the law of war may be tried by military commission. ..." M.C.I. No. 9 § 4(C)(2)(b). CRS-18 Some observers argue that this impermissibly subjects suspected international criminals to the jurisdiction of military commissions in circumstances in which the law of armed conflict has never applied.85 The distinction between a "war crime," traditionally subject to the jurisdiction of military commissions, and a common crime, traditionally the province of criminal courts, may prove to be a matter of some contention during some of the proceedings.86 Composition and Powers. Under M.C.O. No. 1, the planned military commissions consist of a panel of three to seven military officers as well as one or more alternate members who had been "determined to be competent to perform the duties involved" by the Secretary of Defense or his designee,87 and could include reserve personnel on active duty, National Guard personnel in active federal service, and retired personnel recalled to active duty. The rules also permit the appointment of persons temporarily commissioned by the President to serve as officers in the armed services during a national emergency.88 The presiding officer is required to be a judge advocate in any of the U.S. armed forces, but not necessarily a military judge.89 The presiding officer is vested with the authority to decide evidentiary matters and interlocutory motions, or to refer them to the commission or certify them to Appointing Authority for decision. The presiding officer has the power to close any portion of the proceedings in accordance with M.C.O. No. 1, and "to act upon any contempt or breach of Commission rules and procedures," including disciplining any individual who violates any "laws, rules, regulations, or other orders" applicable to the commission, as the presiding officer saw fit. Presumably this power was to include not only military and civilian attorneys but also any witnesses who had been summoned under order of the Secretary of Defense pursuant to M.C.O. No. 1 § 5(A)(5).90 The UCMJ authorizes military commissions to punish contempt with a fine of $100, confinement for up to 30 days, or both.91 Under the UCMJ, a duly subpoenaed witness who is not subject to the UCMJ and who refuses to appear before a military commission may be prosecuted in federal court.92 To the extent that 85 See id. at 38 (NACDL comments). 86 See id. at 98 (commentary of Eugene R. Fidell and Michael F. Noone). 87 M.C.O. No. 1 § 4(A)(3). 88 See 10 U.S.C. § 603, listed as reference (e) of M.C.O. No. 1. 89 M.C.O. No. 1 § 4(A)(4). See NIMJ, supra note 61, at 17 (commenting that the lack of a military judge to preside over the proceedings is a significant departure from the UCMJ). A judge advocate is a military officer of the Judge Advocate General's Corps of the Army or Navy (a military lawyer). A military judge is a judge advocate who is certified as qualified by the JAG Corps of his or her service to serve in a role similar to civilian judges. 90 See M.C.O. No. 1 § 3(C) (asserting jurisdiction over participants in commission proceedings "as necessary to preserve the integrity and order of the proceedings"). 91 See 10 U.S.C. § 848. 92 See 10 U.S.C. § 847. It is unclear how witnesses are "duly subpoenaed;" 10 U.S.C. § 846 empowers the president of the court-martial to compel witnesses to appear and testify and (continued...) CRS-19 M.C.O. No. 1 would allow disciplinary measures against civilian witnesses who refuse to testify or produce other evidence as ordered by the commission, M.C.O. No. 1 would appear to be inconsistent with the UCMJ. One of the perceived shortcomings of the M.O. has to do with the problem of command influence over commission personnel. M.C.O. No. 1 provides for a "full and fair trial," but contains few specific safeguards to address the issue of impartiality. Under the rules as presently written, the President would have complete control over the proceedings. He or his designee decide which charges to press, select the members of the panel, the prosecution and the defense counsel, select the members of the review panel, and approve and implement the final outcome. The procedural rules remain entirely under the control of the President or his designees, who are vested with authority to write them, interpret them, enforce them, and amend them at any time. All commission personnel other than the commission members themselves are under the supervision of the Secretary of Defense, directly or through the DOD General Counsel.93 The Secretary of Defense acted as the direct supervisor of Review Panel members.94 Originally, both the Chief Prosecutor and the Chief Defense Counsel were to report ultimately to the DOD General Counsel, which led some critics to warn that defense counsel were insufficiently independent from the prosecution.95 DOD subsequently amended the instructions so that the Chief Prosecutor reports to the Legal Advisor to the Appointing Authority, but as Justice Kennedy noted in his concurring opinion, the concentration of authority in the Appointing Authority remains a significant departure from the structural safeguards Congress has built into the military justice system.96 The following sections summarize provisions of the procedural rules meant to provide appropriate procedural safeguards. Procedures Accorded the Accused. The military commissions established pursuant to M.C.O. No. 1 have procedural safeguards similar to many of those that apply in general courts-martial, but the M.C.O. does not specifically adopt any procedures from the UCMJ, even those that explicitly apply to military commissions.97 The M.C.O. provides that only the procedures it prescribes or any 92 (...continued) to compel production of evidence, but this statutory authority does not explicitly apply to military commissions. The subpoena power extends to "any part of the United States, or the Territories, Commonwealth and possessions." 93 M.C.I. No. 6. 94 Id. § 3(A)(7). 95 Cf United States v. Wiesen, 56 M.J. 172 (2001), aff'd on reconsideration, 57 M.J. 48 (2002)(noting that command relationships among participants in court-martial proceeding may give rise to "implied bias"). 96 Hamdan, slip op. at 11-16 (Kennedy, J. concurring). 97 See 10 U.S.C. § 836 (providing military commission rules "may not be contrary to or inconsistent with [the UCMJ]"). But see In re Yamashita, 327 U.S. 1, 19-20 (1946)(finding Congress did not intend the language "military commission" in Article 38 of the Articles of (continued...) CRS-20 supplemental regulations that may be established pursuant to the M.O., and no others shall govern the trials,98 perhaps precluding commissions from looking to the UCMJ or other law to fill in any gaps. The M.C.O. does not explicitly recognize that accused persons have rights under the law. The procedures that are accorded to the accused do not give rise to any enforceable right, benefit or privilege, and are not to be construed as requirements of the U.S. Constitution.99 The accused has no opportunity to challenge the interpretation of the rules or seek redress in case of a breach.100 The procedural safeguards are for the most part listed in section 5. The accused is entitled to be informed of the charges sufficiently in advance of trial to prepare a defense,101 shall be presumed innocent until determined to be guilty beyond a reasonable doubt by two thirds of the commission members,102 shall have the right not to testify at trial unless he so chooses, shall have the opportunity to present evidence and cross-examine witnesses for the prosecution, and may be present at every stage of proceeding unless it is closed for security concerns or other reasons.103 The presumption of innocence and the right against self-incrimination will result in an entered plea of "Not Guilty" if the accused refuses to enter a plea or enters a "Guilty" plea that is determined to be involuntary or ill informed.104 Open Hearing. The trials themselves are to be conducted openly except to the extent the Appointing Authority or presiding officer closes proceedings to protect classified or classifiable information or information protected by law from unauthorized disclosure, the physical safety of participants, intelligence or law enforcement sources and methods, other national security interests, or "for any other reason necessary for the conduct of a full and fair trial."105 DOD invited members of 97 (...continued) War, the precursor to UCMJ Art. 36, to mean military commissions trying enemy combatants). On the other hand, President Bush explicitly invoked UCMJ art. 36 as statutory authority for the M.O., and included a finding, "consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." M.O. § 1(g). However, the Supreme Court rejected the finding as unsupported by the record and read the "uniformity" clause of UCMJ art. 36 as requiring that military commissions must follow rules as close as possible to those that apply in courts-martial. 98 M.C.O. No. 1 § 1. 99 Id. § 10. 100 Id.; M.C.I. No. 1 § 6 (Non-Creation of Right). 101 M.C.O. No. 1 § 5(A). 102 Id. §§ 5(B-C); 6(F). 103 Id. §§ 4(A)(5)(a); 5(K); 6B(3). 104 Id. §§ 5(B) and 6(B). 105 M.C.O. No. 1 § 6(D)(5). CRS-21 the press to apply for permission to attend the trials,106 although it initially informed Human Rights Watch and other groups that logistical issues would likely preclude their attendance.107 However, at the discretion of the Appointing Authority, "open proceedings" need not necessarily be open to the public and the press.108 Proceedings may be closed to the accused or the accused's civilian attorney, but not to detailed defense counsel. Furthermore, counsel for either side must obtain permission from the Appointing Authority or the DOD General Counsel in order to make a statement to the press.109 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.110 The First Amendment right of public access extends to trials by court-martial,111 but is not absolute. Trials may be closed only where the following test is met: the party seeking closure demonstrates an overriding interest that is likely to be prejudiced; the closure is narrowly tailored to protect that interest; the trial court has considered reasonable alternatives to closure; and the trial court makes adequate findings to support the closure.112 Because procedures established under M.C.O. No. 1 appear to allow the exclusion of the press and public based on the discretion of the Appointing Authority without any consideration of the above requirements with respect to the specific exigencies of the case at trial, the procedures may implicate the First Amendment rights of the press and public. Although the First Amendment bars government interference with the free press, it does not impose on the government a duty "to accord the press special access to information not shared by members of the public generally."113 The reporters' right to gather information does not include an absolute right to gain access to areas not 106 See DOD Press Release, DOD Announces Media Coverage Opportunities for Military Commissions (Feb. 11, 2004), available at [http://www.defenselink.mil/advisories/2004/ pa20040211-0205.html] (last visited July 24, 2006). 107 See Toni Locy, Human Rights Groups Denied Seats at Tribunals, USA TODAY, Feb. 24, 2004, at A3. 108 M.C.O. No. 1 at § 6(B)(3)("Open proceedings may include, at the discretion of the Appointing Authority, attendance by the public and accredited press, and public release of transcripts at the appropriate time."). In courts-martial, "public" is defined to include members of the military as well as civilian communities. Rules for Court-Martial (R.C.M.) Rule 806. 109 M.C.I. No. 3 § 5(C) (Prosecutor's Office); M.C.I. No. 4 § 5(C) (Defense counsel, including members of civilian defense counsel pool). 110 See Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 602 (1982)(newspaper had standing to challenge court order closing portions of criminal trial). 111 United States v. Hershey, 20 M.J. 433 (C.M.A.1985), cert. denied, 474 U.S. 1062 (1986); United States v. Grunden, 2 M.J. 116 (C.M.A.1977). The press has standing to challenge closure of military justice proceedings. ABC, Inc. v. Powell, 47 M.J. 363, 365 (1997). 112 See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984). 113 Pell v. Procunier, 417 U.S. 817, 822-24 (1974). CRS-22 open to the public. Thus, if the military commissions were to sit in areas off-limits to the public for other valid reasons, media access may be restricted for reasons of operational necessity.114 Access of the press to the proceedings of military commissions may be an issue of contention for the courts ultimately to decide, even if those tried by military commission are determined to lack the protection of the Sixth Amendment right to an open trial or means to challenge the trial.115 Right to Counsel. Once charges are referred,116 the defendant will have military defense counsel assigned free of cost, but may request another JAG officer, who will be provided as a replacement if available in accordance with any applicable instructions or supplementary regulations that might later be issued.117 The accused does not have the right to refuse counsel in favor of self-representation.118 M.C.I. No. 4 requires detailed defense counsel to "defend the accused zealously within the bounds of the law ... notwithstanding any intention expressed by the accused to represent himself."119 The accused may also hire a civilian attorney at his own expense, but must be represented by assigned defense counsel at all relevant times, even if he retains the services of a civilian attorney. Civilian attorneys may apply to qualify as members of the pool of eligible attorneys, or may seek to qualify ad hoc at the request of an accused. Some critics argue the rules provide disincentives for the participation of civilian lawyers.120 Civilian attorneys must agree that the military commission representation will be his or her primary duty, and are not permitted to bring any assistants, such as co-counsel or paralegal support personnel, with them to the defense team. Originally, all defense and case preparation was to be done on site, and civilian attorneys were not to share documents or discuss the case with anyone but the detailed counsel or the defendant. These restrictions, read literally, might have prevented civilian defense counsel from conducting witness interviews or 114 See Juan R. Torruella, On the Slippery Slopes of Afghanistan: Military Commissions and the Exercise of Presidential Power, 4 U. PA. J. CONST. L. 648, 718 (2002) (noting that proceedings, if held at the Guantánamo Bay Naval Station, may be de facto closed due to the physical isolation of the facility). 115 Cf. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir.2002), (finding closure of immigration hearings based on relation to events of Sept. 11 unconstitutional infringement on the First Amendment right to free press). But see North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002) cert denied 538 U.S. 1056 (2003)(no presumption of openness for immigration hearings). 116 In practice, some of the detainees have been assigned counsel upon their designation as subject to the President's M.O. 117 M.C.O. No. 1 § 4(C). M.C.I. No. 4 § 3(D) lists criteria for the "availability" of selected detailed counsel. 118 But see Faretta v. California , 422 U.S. 806 (1975) (Const. Amend. VI guarantees the right to self-representation). 119 M.C.I. No. 4 § 3(C). 120 See HRF, supra note 81, at 2-3; Vanessa Blum, Tribunals Put Defense Bar in Bind, LEGAL TIMES, July 14, 2003, at 1 (reporting that only 10 civilian attorneys had applied to join the pool of civilian defense lawyers). CRS-23 seeking advice from experts in humanitarian law, for example.121 However, the Pentagon later released a new version of M.C.I. No. 5 that loosened the restrictions to allow communications with "individuals with particularized knowledge that may assist in discovering relevant evidence."122 Civilian attorneys must meet strict qualifications to be admitted before a military commission. The civilian attorney must be a U.S. citizen (except for those representing Australian detainees123) with at least a SECRET clearance,124 who is admitted to the bar of any state or territory. Furthermore, the civilian attorney may not have any disciplinary record, and must agree in writing to comply with all rules of court.125 The civilian attorney is not guaranteed access to closed hearings or information deemed protected under the rules, which may or may not include classified information.126 The requirement that civilian counsel must agree that communications with the client may be monitored has been modified to require prior notification and to permit the attorney to notify the client when monitoring is to occur.127 Although the government will not be permitted to use information against the accused at trial, some argue the absence of the normal attorney-client privilege could impede communications between them, possibly decreasing the effectiveness of counsel. Civilian attorneys are bound to inform the military counsel if they learn of information about a pending crime that could lead to "death, substantial bodily harm, 121 See SOURCEBOOK, supra note 67, at 136-37. 122 M.C.I. No. 5, Annex B, "Affidavit and Agreement by Civilian Defense Counsel," at § II(E)(1). The communications are subject to restrictions on classified or "protected" information. Id. 123 See DOD Press Release, supra note 21. 124 Originally, civilian attorneys were required to pay the costs associated with obtaining a clearance. M.C.I. No. 5 §3(A)(2)(d)(ii). DOD has waived the administrative costs for processing applications for TOP SECRET clearances in cases that would require the higher level of security clearance. See DOD Press Release No. 084-04 , New Military Commission Orders, Annex Issued (Feb. 6, 2004), available at [http://www.defenselink.mil/releases/ 2004/nr20040206-0331.html] (Last visited July 24, 2006). 125 M.C.O. No. 1 § 4(C)(3)(b). 126 Id.; see Edgar, supra note 10 (emphasizing that national security may be invoked to close portions of a trial irrespective of whether classified information is involved). 127 See M.C.O. No. 3, "Special Administrative Measures for Certain Communications Subject to Monitoring." The required affidavit and agreement annexed to M.C.I. No. 3 was modified to eliminate the following language: I understand that my communications with my client, even if traditionally covered by the attorney-client privilege, may be subject to monitoring or review by government officials, using any available means, for security and intelligence purposes. I understand that any such monitoring will only take place in limited circumstances when approved by proper authority, and that any evidence or information derived from such communications will not be used in proceedings against the Accused who made or received the relevant communication. CRS-24 or a significant impairment of national security."128 M.C.I. No. 5 provides no criteria to assist defense counsel in identifying what might constitute a "significant impairment of national security." All defense counsel are under the overall supervision of the Office of the Chief Defense Counsel, which is entrusted with the proper management of personnel and resources the duty to preclude conflicts of interest.129 The M.C.O. further provides that "in no circumstance shall accommodation of counsel be allowed to delay proceedings unreasonably."130 The Appointing Authority may revoke any attorney's eligibility to appear before any commission.131 Some attorneys' groups have voiced opposition to the restrictions and requirements placed on civilian defense counsel, arguing the rules would not allow a defense attorney ethically to represent any client. The board of directors for the National Association of Criminal Defense Lawyers issued an ethics statement saying that it is unethical for a lawyer to represent a client before a military tribunal under the current rules and that lawyers who choose to do so are bound to contest the unethical conditions."132 The House of Delegates of the American Bar Association (ABA) took no position on whether civilian lawyers should participate in the tribunals, but urged the Pentagon to relax some of the rules, especially with respect to the monitoring of communications between clients and civilian attorneys.133 The National Institute of Military Justice, while echoing concerns about the commission rules, has stated that lawyers who participate will be performing an important public service.134 Discovery. The accused has the right to view evidence the Prosecution intends to present as well as any exculpatory evidence known, as long as it is not deemed to be protected under Sec. 6(D)(5).135 In courts-martial, by contrast, the accused has the right to view any documents in the possession of the Prosecution 128 M.C.I. No. 5, Annex B § II(J). 129 M.C.O. No 1 § 4(C)(1); see Torruella, supra note 114, at 719 (noting that the civilian criminal defense system has no equivalent to this system, in which the accused has no apparent choice over the supervision of the defense efforts). 130 M.C.O. No 1 § 4(A)(5)(c). 131 Id. § 4(A)(5)(b). 132 See NACDL Ethics Advisory Committee Opinion 03-04 (August 2003), available at [http://www.nacdl.org] (Last visited July 24, 2006); Participation in Secret Military Terror Trials Unethical, U.S. Lawyers Say, AP Aug. 2, 2003 (quoting incoming NACDL president Barry Scheck). 133 See U.S. May Ease Tribunal Rules, NEWSDAY, Aug. 14, 2003, at A18. 134 See NIMJ Statement on Civilian Attorney Participation as Defense Counsel in Military Commissions, July 13, 2003, available at [http://www.nimj.com/documents/NIMJ_Civ_ Atty_Participation_Statement(1).pdf] (last visited July 24, 2006). 135 Id. § 5(E). CRS-25 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.136 The accused may also obtain witnesses and documents "to the extent necessary and reasonably available as determined by the Presiding Officer" and subject to secrecy determinations. The Appointing Authority shall make available to the accused "such investigative or other resources" deemed necessary for a full and fair trial.137 Access to other detainees who might be able to provide mitigating or exculpatory testimony may be impeded by the prohibition on defense counsel from entering into agreements with "other Accused or Defense Counsel that might cause them or the Accused they represent to incur an obligation of confidentiality with such other Accused or Defense Counsel or to effect some other impediment to representation."138 In other words, communications with potential witnesses would not be privileged and could be used against the witness at his own trial. The overriding consideration with regard to whether the accused or defense counsel (including detailed defense counsel) may gain access to information appears to be the need for secrecy. The presiding officer may delete specific items from any information to be made available to the accused or defense counsel, or may direct that unclassified summaries of protected information be prepared.139 However, no evidence may be admitted for consideration by the rest of the commission members unless it has been made available to at least the detailed defense counsel.140 Information that was reviewed by the presiding officer ex parte and in camera but withheld from the defense over defense objection will be sealed and annexed to the record of the proceedings for review by the various reviewing authorities.141 Nothing in the M.C.O. limits the purposes for which the reviewing authorities may use such material. Right to Face One's Accuser. The presiding officer may authorize any methods appropriate to protect witnesses, including telephone or other electronic means, closure of all or part of the proceedings and the use of pseudonyms.142 The commission may consider sworn or unsworn statements, and these apparently may be read into evidence without meeting the requirements for authentication of depositions and without regard to the availability of the witness under the UCMJ, as 136 See R.C.M. 701(a)(6); NIMJ, supra note 61, at 31-32. 137 M.C.O. No. 1 § 5(H). Civilian defense counsel must agree not to submit any claims for reimbursement from the government for any costs related to the defense. M.C.I. No. 5 Annex B. 138 M.C.I. No. 4 § 5. 139 Id. § 6(D)(5)(b). Some observers note that protected information could include exculpatory evidence as well as incriminating evidence, which could implicate 6th Amendment rights and rights under the Geneva Convention, if applicable. See HRF, supra note 81, at 3. 140 Id. 141 Id. § 6(D)(5)(d). 142 Id. § 6(D)(2)(d). CRS-26 these provisions expressly apply to military commissions.143 UCMJ articles 49 and 50 could be read to apply to military commissions the same rules against hearsay used at courts-martial; however, the Supreme Court has declined to apply similar provisions to military commissions trying enemy combatants.144 It was the provision for the use of secret evidence and for the exclusion of the accused from portions of the hearings that the district court found most troubling in Hamdan.145 The court declared "[i]t is obvious beyond the need for citation that such a dramatic deviation from the confrontation clause could not be countenanced in any American court ..." and found it apparent that "the right to trial `in one's presence' is established as a matter of international humanitarian and human rights law."146 Under UCMJ art. 39,147 the accused at a court-martial has the right to be present at all proceedings other than the deliberation of the members. Admissibility of Evidence. The standard for the admissibility of evidence remains as it was stated in the M.O.; evidence is admissible if it is deemed to have "probative value to a reasonable person."148 This is a significant departure from the 143 See 10 U.S.C. §§ 849 -50. UCMJ art. 49 states: (d) A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape, or similar material, may be played in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or military board, if it appears -- (1) that the witness resides or is beyond the State, Territory, Commonwealth, or District of Columbia in which the court, commission, or board is ordered to sit, or beyond 100 miles from the place of trial or hearing; (2) that the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing; or (3) that the present whereabouts of the witness is unknown. (e) Subject to subsection (d), testimony by deposition may be presented by the defense in capital cases. (f) Subject to subsection (d), a deposition may be read in evidence or, in the case of audiotape, videotape, or similar material, may be played in evidence in any case in which the death penalty is authorized but is not mandatory, whenever the convening authority directs that the case be treated as not capital, and in such a case a sentence of death may not be adjudged by the court-martial. 144 See In re Yamashita, 327 U.S. 1, 19 (1946) (declining to apply art. 25 of the Articles of War, which is substantially the same as current UCMJ art. 49, to trial by military commission of an enemy combatant). The Yamashita Court concluded that Congress intended the procedural safeguards in the Articles of War to apply only to persons "subject to military law" under article 2. But see id. at 61-72 (Rutledge, J. dissenting)(arguing the plain language of the statute does not support that interpretation). 145 Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 167-68 (D.D.C. 2004). 146 Id. at 168. 147 10 U.S.C.§ 839. 148 M.C.O. No. 1 § 6(D)(1). CRS-27 Military Rules of Evidence (Mil. R. Evid.),149 which provide that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States [and other applicable statutes, regulations and rules]."150 In a court- martial, relevant evidence may be excluded if its probative value is substantially outweighed by other factors.151 "Probative value to a reasonable man" is a seemingly lax standard for application to criminal trials.152 A reasonable person could find plausible sounding rumors or hearsay to be at least somewhat probative, despite inherent questions of reliability and fairness that both federal and military rules of evidence are designed to address. Furthermore, defendants before military commissions do not appear to have the right to move that evidence be excluded because of its propensity to create confusion or unfair prejudice, or because it was unlawfully obtained or coerced through the use of measures less severe than torture. In March 2006, DOD released M.C.I. No. 10 prohibiting prosecutors from introducing, and military commissions from admitting, statements established to have been made as a result of torture. Sentencing. The prosecution must provide in advance to the accused any evidence to be used for sentencing, unless good cause is shown. The accused may present evidence and make a statement during sentencing proceedings; however, this right does not appear to mirror the right to make an unsworn statement that military defendants may exercise in regular courts-martial.153 Statements made by the accused during the sentencing phase appear to be subject to cross-examination. Possible penalties include execution,154 imprisonment for life or any lesser term, payment of a fine or restitution (which may be enforced by confiscation of property subject to the rights of third parties), or "such other lawful punishment or condition of punishment" determined to be proper. Detention associated with the accused's status as an "enemy combatant" will not count toward serving any sentence imposed.155 If the sentence includes confinement, it is unclear whether or how the conditions of imprisonment will differ from that of detention as an "enemy 149 The Military Rules of Evidence (Mil. R. Evid.) are contained in the Manual for Courts- Martial (M.C.M.), established as Exec. Order No. 12473, Manual for Courts-Martial, United States, 49 Fed. Reg 17,152, (Apr. 23, 1984), as amended. The M.C.M. also contains the procedural rules for courts-martial, known as the Rules For Courts-Martial (R.C.M.). 150 Mil. R. Evid. 402. 151 Mil. R. Evid. 403. 152 See Torruella, supra note 114, at 715; ACTL, supra note 10, at 11. 153 See NIMJ, supra note 61, at 37 (citing United States v. Rosato, 32 M.J. 93, 96 (C.M.A. 1991)). 154 The method of execution used by the Army to carry out a death sentence by military commission is lethal injection. See U.S. Army Correctional System: Procedures for Military Executions, AR 190-55 (1999). It is unclear whether DOD will follow these regulations with respect to sentences issued by these military commissions, but it appears unlikely that any such sentences would be carried out at Ft. Leavenworth, in accordance with AR 190-55. 155 M.C.I. No. 7 § 3(A). CRS-28 combatant." Sentences agreed in plea agreements are binding on the commission, unlike regular courts-martial, in which the agreement is treated as the maximum sentence. Similar to the practice in military courts-martial, the death penalty may only be imposed upon a unanimous vote of the Commission.156 In courts-martial, however, both conviction for any crime punishable by death and any death sentence must be by unanimous vote.157 None of the rules specify which offenses might be eligible for the death penalty, but the Pentagon announced the death penalty will not be sought in the cases brought so far. Post-Trial Procedure. One criticism leveled at the language of the M.O. was that it does not include an opportunity for the accused to appeal a conviction, and appears to bar habeas corpus relief. Another was that it appears to allow the Secretary of Defense (or the President) the discretion to change the verdict, and does not protect persons from double jeopardy.158 M.C.O. No.1 addresses these issues in part. Review and Appeal. The rules provide for the administrative review of the trial record by the Appointing Authority, who forwards the record, if found satisfactory, to a review panel consisting of three military officers, one of whom must have experience as a judge. The Bush Administration has announced its intent to commission four individuals to active duty to serve on the Military Commission Review Panels.159 They are Griffin Bell, a former U.S. attorney general and judge of the U.S. Court of Appeals for the 5th Circuit; Edward Biester, a former Member of the U.S. House of Representatives and current judge of the Court of Common Pleas of Bucks County, Pennsylvania; the Honorable William T. Coleman Jr., a former Secretary of Transportation; and Chief Justice Frank Williams of the Rhode Island Supreme Court. There is no opportunity for the accused to appeal a conviction in the ordinary sense. The review panel may, however, at its discretion, review any written submissions from the prosecution and the defense, who do not appear to have an opportunity to view or rebut the submission from the opposing party.160 If the review panel forms a "firm and definite conviction that a material error of law occurred," it returns the case to the Appointing Authority for further proceedings. If the review panel determines that one or more charges should be dismissed, the Appointing 156 M.C.O. No. 1 § 6(F). 157 10 U.S.C. § 851. 158 See Laurence H. Tribe, Trial by Fury, THE NEW REPUBLIC, Dec. 10, 2001. 159 See Press Release, Military Commission Review Panel Members to be Designated and Instruction Issued (Dec. 30, 2003), available at [http://www.defenselink.mil/releases/ 2003/nr20031230-0822.html] (last visited July 24, 2006). 10 U.S.C. § 603 permits the President, during war or national emergency, to appoint any qualified person as a military officer in the grade of major general or below. 160 The convening authority of a general court-martial is required to consider all matters presented by the accused. 10 U.S.C. § 860. CRS-29 Authority is bound to do so.161 For other cases involving errors, the Appointing Authority is required to return the case to the military commission. Otherwise, the case is forwarded to the Secretary of Defense with a written recommendation. (Under the UCMJ, the trial record of a military commission would be forwarded to the appropriate JAG first.)162 After reviewing the record, the Secretary of Defense may forward the case to the President or return it for further proceedings for any reason, not explicitly limited to material errors of law. The M.C.O. does not indicate what "further proceedings" may entail. If the Secretary of Defense is delegated final approving authority, he can approve or disapprove the finding, or mitigate or commute the sentence. The rules do not clarify what happens to a case that has been "disapproved." It is unclear whether a disapproved finding is effectively vacated and remanded to the military commission for a rehearing. The UCMJ forbids rehearings or appeal by the government of verdicts amounting to a finding of Not Guilty, and prohibits the invalidation of a verdict or sentence due to an error of law unless the error materially prejudices the substantial rights of the accused.163 The M.C.O. does not contain any such explicit prohibitions, but M.C.I. No. 9 defines "Material Error of Law" to exclude variances from the M.O. or any of the military orders or instructions promulgated under it that would not have had a material effect on the outcome of the military commission.164 M.C.I. No. 9 allows the review panel to recommend the disapproval of a finding of Guilty on a basis other than a material error of law.165 It does not indicate what options the review panel would have with respect to findings of Not Guilty. M.C.O. No. 1 does not provide a route for a convicted person to appeal to any independent authority. Persons subject to the M.O. are described as not privileged to "seek any remedy or maintain any proceeding, directly or indirectly" in federal or state court, the court of any foreign nation, or any international tribunal.166 However, a defendant may petition a federal court for a writ of habeas corpus to challenge the jurisdiction of the military commission.167 161 M.C.I. No. 9 § 4(C). 162 10 U.S.C. § 8037 (listing among duties of Air Force Judge Advocate General to "receive, revise, and have recorded the proceedings of ... military commissions"); 10 U.S.C. § 3037 (similar duty ascribed to Army Judge Advocate General). 163 10 U.S.C. § 859. 164 M.C.I. No. 9 § 4(C)(2)(a). 165 M.C.I. No. 9 § 4(C)(1)(b). 166 M.O. at § 7(b). 167 See Alberto R. Gonzales, Martial Justice, Full and Fair, NEW YORK TIMES (op-ed), Nov. 30, 2001 (stating that the original M.O. was not intended to preclude habeas corpus review). Rasul v. Bush clarified that the detainees at Guantanamo Bay have access to federal courts, but the extent to which the findings of military commissions will be reviewable remains unclear. 124 S. Ct. 2686 (2004). CRS-30 Protection against Double Jeopardy. The M.C.O. provides that the accused may not be tried for the same charge twice by any military commission once the commission's finding on that charge becomes final (meaning once the verdict and sentence have been approved).168 Therefore, apparently, jeopardy does not attach -- there has not been a "trial" -- until the final verdict has been approved by the President or the Secretary of Defense. In contrast, at general courts-martial, jeopardy attaches after the first introduction of evidence by the prosecution. If a charge is dismissed or is terminated by the convening authority after the introduction of evidence but prior to a finding, through no fault of the accused, or if there is a finding of Not Guilty, the trial is considered complete for purposes of jeopardy, and the accused may not be tried again for the same charge by any U.S. military or federal court without the consent of the accused.169 Although M.C.O. No. 1 provides that an authenticated verdict170 of Not Guilty by the commission may not be changed to Guilty,171 either the Secretary of Defense or the President may disapprove the finding and return the case for "further proceedings" prior to the findings' becoming final, regardless of the verdict. If a finding of Not Guilty is referred back to the commission for rehearing, double jeopardy may be implicated.172 Another double jeopardy issue that might arise is related to the requirements for the specification of charges.173 M.C.O. No. 1 does not provide a specific form for the charges, and does not require an oath or signature.174 If the charge does not adequately describe the offense, another trial for the same offense under a new description is not as easily prevented. M.C.I. No. 2, setting forth elements of crimes triable by the commissions, may provide an effective safeguard; however, new crimes may be added to its list at any time. The M.O. also left open the possibility that a person subject to the order might be transferred at any time to some other governmental authority for trial.175 A federal criminal trial, as a trial conducted under the same sovereign as a military commission, could have double jeopardy implications if the accused had already been 168 M.C.O. No. 1 § 5(P). The finding is final when "the President or, if designated by the President, the Secretary of Defense makes a final decision thereon pursuant to Section 4(c)(8) of the President's Military Order and in accordance with Section 6(H)(6) of [M.C.O. No. 1]." Id. § 6(H)(2). 169 10 U.S.C. § 844. Federal courts and U.S. military courts are considered to serve under the same sovereign for purposes of double (or former) jeopardy. 170 In regular courts-martial, the record of a proceeding is "authenticated," or certified as to its accuracy, by the military judge who presided over the proceeding. R.C.M. 1104. None of the military orders or instructions establishing procedures for military commissions explains what is meant by "authenticated finding." 171 M.C.O. No. 1 § 6(H)(2). 172 The UCMJ does not permit rehearing on a charge for which the accused is found on the facts to be not guilty. 173 See NIMJ, supra note 61, at 39. 174 See M.C.O. No. 1 § 6(A)(1). 175 M.O. § 7(e). CRS-31 tried by military commission for the same crime or crimes, even if the commission proceedings did not result in a final verdict. The federal court would face the issue of whether jeopardy had already attached prior to the transfer of the individual from military control to other federal authorities. Conversely, the M.O. provides the President may determine at any time that an individual is subject to the M.O., at which point any state or federal authorities holding the individual would be required to turn the accused over to military authorities. If the accused were already the subject of a federal criminal trial under charges for the same conduct that resulted in the President's determination that the accused is subject to the M.O., and if jeopardy had already attached in the federal trial, double jeopardy could be implicated by a new trial before a military commission. M.C.O. No. 1 does not explicitly provide for a double jeopardy defense under such circumstances. Military Commission Legislation The Bush Administration has presented to Congress a proposal to be cited as the "Military Commissions Act of 2006." Senator Frist introduced very similar legislation, the "Bringing Terrorists to Justice Act of 2006," as S. 3861 and as title I of S. 3886, the "Terrorist Tracking, Identification, and Prosecution Act of 2006." The Senate Armed Services Committee reported favorably a bill, "Military Commissions Act of 2006" (S. 3901), which is in most respects similar to the Administration's proposal, but varies with respect to jurisdiction and some rules of evidence. The House Armed Services Committee approved H.R. 6054, also called the "Military Commissions Act of 2006," which closely tracks the Administration's proposal. After reaching an agreement with the White House with respect to several provisions in S. 3901, Senator McConnell introduced S. 3930, also entitled the "Military Commissions Act of 2006." All of these bills would authorize the trials of "alien unlawful combatants" by military commissions for a set of enumerated crimes and provide the accused with certain rights. All of the bills would add a new chapter 47a after the UCMJ in title 10, U.S. Code. They leave intact the President's authority to establish military commissions under the UCMJ, but the Senate bills would seemingly expand that authority by removing the limitation of such trials to offenses and offenders triable by military commission pursuant to "statute or the law of war."176 All of the bills would amend article 36, UCMJ (10 U.S.C. § 836) to exclude military commissions from the need to comply to the extent the President deems practicable with the procedural rules that apply in federal district courts.177 To various degrees, the bills clarify that the UCMJ does not apply to military commissions. S. 3901 and S. 3930 provide that "[e]xcept as otherwise provided [in the bill or in the UCMJ], the procedures and rules of evidence applicable in trials by 176 S. 3901 and S. 3930 § 5(b)(2); S. 3886 § 108(d); S. 3861 § 8(d). 177 H.R. 6054 § 3(b); S. 3901 and S. 3930 § 5(b)(3) apply this exception only to military commissions under new chapter 47a; S. 3886 § 108(e); S. 3861 § 8(e) would except all military commissions. CRS-32 general courts-martial of the United States shall apply in trials by military commission under this chapter." (Proposed § 949a(a)). However, they permit the Secretary of Defense, in consultation with the Attorney General, to make such exceptions in the applicability in trials by military commission under this chapter from the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need." (Proposed § 949a(b)). S. 3901 notes that some provisions of the UCMJ do not apply by their terms, and that "[t]he judicial construction and application of chapter 47 of this title, while instructive, is therefore not of its own force binding on military commissions...." S. 3930 and the other bills provide that the judicial application and construction of the UCMJ does not bind the interpretation of the new chapter. (Proposed 10 U.S.C. § 948b(b)). The bills each declare that the military commissions are "regularly constituted affording all the necessary `judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions."178 However, all of the bills provide that the Geneva Conventions may not be invoked as a source of rights in any U.S. court.179 Personal Jurisdiction. S. 3901 and S. 3930 define "unlawful enemy combatant" to mean "an individual engaged in hostilities against the United States who is not a lawful enemy combatant." (Proposed § 948a(4)). Jurisdiction of military commissions would extend to any "alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States." (Proposed 948c). Aliens who have supported hostilities without having actually engaged in hostilities would not seem to fit within the definition of unlawful enemy combatant, and yet the jurisdiction section appears to contemplate their trial by military commission. H.R. 6054, S. 3861, and S. 3886 define "unlawful enemy combatant" to mean an individual determined by the President or the Secretary of Defense ... to be part of or affiliated with a force or organization ... that is engaged in hostilities against the United States or its co-belligerents in violation of the law of war"; or "to have committed a hostile act in aid of" or "to have supported hostilities in aid of such a force or organization so engaged." Lawful combatants, such as prisoners of war, are excluded from the jurisdiction of military commissions in all three bills. H.R. 6054 also excludes protected persons within the meaning of the Fourth Geneva Convention from the jurisdiction of military commissions. If the armed conflict is non- international in nature, as many interpret the Supreme Court's Hamdan opinion to establish, then no person can qualify for POW status under the third Geneva Convention or "protected person" status within the meaning of article 4 of the Fourth 178 S. 3901 § 2(6)(findings); S. 3861, S. 3930, and S. 3861 948b(d); H.R. 6054 948b(c). 179 H.R. 6054 § 6(b); S. 3901 § 7 (applicable only in civil actions); S. 3861 § 6(b)(1); S. 3886 § 106(b)(1); S. 3930 § 7(a) (applicable only in civil actions). S. 3930 additionally provides that the accused would not be permitted to invoke the Geneva Conventions "as a source of rights" in any military commission. Proposed 10 U.S.C. § 948b(f). CRS-33 Geneva Convention. All persons in captivity would be entitled to protected status within the meaning of Common Article 3, however. None of the bills defines "hostilities" or explains what conduct amounts to "supporting hostilities." To the extent that the jurisdiction is interpreted to include conduct that falls outside the accepted definition of participation in an armed conflict, the bills might run afoul of the courts' historical aversion to trying civilians before military tribunal when other courts are available.180 It is unclear whether this constitutional principle applies to aliens captured and detained overseas, but the bills do not appear to exempt from military jurisdiction permanent resident aliens captured in the United States who might otherwise meet the definition of "unlawful enemy combatant." It is generally accepted that aliens within the United States are entitled to the same protections in criminal trials that apply to U.S. citizens. Therefore, to subject persons to trial by military commission who do not meet the exception carved out by the Supreme Court in ex parte Quirin181 for unlawful belligerents, to the extent such persons enjoy constitutional protections, would likely raise significant constitutional questions. Subject Matter Jurisdiction. All of the bills set forth a detailed list of crimes that may be tried by military commission when committed by alien unlawful combatants, provided, except in the case of H.R. 6054, that the offense is committed "in the context of and associated with armed conflict." The bills (except S. 3901) each declare that they merely codify offenses that have traditionally been triable by military commissions, implying that no retroactively punishable offenses are created in violation of the Constitution's prohibition against ex post facto crimes and punishments or the analogous principle applicable under international law. Although many of the crimes seem to be well-established offenses against the law of war, at least in the context of an international armed conflict,182 a court might 180 See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), Duncan v. Kahanamoku, 327 U.S. 304 (1945). 181 317 U.S. 1 (1942) 182 For example, see Article 3 of the Statute governing the International Criminal Tribunal for the former Yugoslavia (ICTY) includes the following as violations of the laws or customs of war in non-international armed conflict. Such violations shall include, but not be limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property. (continued...) CRS-34 conclude that some of the listed crimes are new. For example, a plurality of the Supreme Court in Hamdan agreed that conspiracy is not a war crime under the traditional law of war.183 The crime of "murder in violation of the law of war," which punishes persons who, as unprivileged belligerents, commit hostile acts that result in the death of any persons, including lawful combatants, may also be new. While it appears to be well-established that a civilian who kills a lawful combatant is triable for murder and cannot invoke the defense of combatant immunity, it is not clear that the same principle applies in armed conflicts of a non-international nature, where combatant immunity does not apply. The International Criminal Tribunal for the former Yugoslavia (ICTY) has found that war crimes in the context of non- international armed conflict include murder of civilians, but that the killing of a combatant is not a war crime.184 Evidentiary Rules. All of the bills provide for the admission of evidence under rules that are more permissive than the Military Rules of Evidence. 182 (...continued) UN Doc. S/Res/827 (1993), art. 3. The ICTY Statute and procedural rules are available at [http://www.un.org/icty/legaldoc-e/index.htm]. The Trial Chamber in the case Prosecutor v. Naletilic and Martinovic, (IT-98-34)March 31, 2003, interpreted Article 3 of the Statute to cover specifically: (i) violations of the Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventions other than those classified as grave breaches by those Conventions; (iii) violations of [Common Article 3) and other customary rules on internal conflicts, and (iv) violations of agreements binding upon the parties to the conflict" Id. at para. 224. See also Prosecutor v. Tadic, (IT-94-1) (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 86-89. The Appeals Chamber there set forth factors that make an offense a "serious" violation necessary to bring it within the ICTY's jurisdiction: (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met ...; (iii) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim.... (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. Id. at para. 94 183 Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2785 (2006). 184 Prosecutor v. Kvocka et al., Case No. IT-98-30/1 (Trial Chamber), November 2, 2001, para. 124: ("An additional requirement for Common Article 3 crimes under Article 3 of the Statute is that the violations must be committed against persons `taking no active part in the hostilities.'"); Prosecutor v. Jelisic, Case No. IT-95-10 (Trial Chamber), December 14, 1999, para. 34 ("Common Article 3 protects "[p]ersons taking no active part in the hostilities" including persons "placed hors de combat by sickness, wounds, detention, or any other cause."); Prosecutor v. Blaskic, Case No. IT-95-14 (Trial Chamber), March 3, 2000, para. 180 ("Civilians within the meaning of Article 3 are persons who are not, or no longer, members of the armed forces. Civilian property covers any property that could not be legitimately considered a military objective."). CRS-35 Hearsay. S. 3901 would provide for the admission of hearsay evidence that would not be permitted under the Manual for Courts-Martial. The hearsay evidence is admissible only if the proponent of the evidence notifies the adverse party sufficiently in advance of the intention to offer the evidence, as well as the "particulars of the evidence (including information on the general circumstances under which the evidence was obtained)," and the military judge finds that "the totality of the circumstances render the evidence more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts, taking into consideration the unique circumstances of the conduct of military and intelligence operations during hostilities." (S. 3901, Proposed 10 U.S.C. § 949a(b)(3)). S. 3930 eliminates the latter consideration, but provides that the evidence is inadmissible if the party opposing its admission "clearly demonstrates that the evidence is unreliable or lacking in probative value." H.R. 6054, S. 3886, and S. 3861 are similar to S. 3930, providing that "Hearsay evidence is admissible unless the military judge finds that the circumstances render the evidence unreliable or lacking in probative value. However, such evidence may be admitted only if the proponent of the evidence makes the evidence known to the adverse party in advance of trial or hearing." The language does not indicate whether the any information about the source of the evidence must be provided. Coerced Testimony. All five bills prohibit the use of statements obtained through torture as evidence in a trial, except as proof of torture against a person accused of committing torture. S. 3901 also provides for the exclusion of statements elicited through cruel, inhuman, or degrading treatment, and the exclusion of statements elicited through coercive methods not rising to the level of cruel, inhuman or degrading treatment as defined in the Detainee Treatment Act (DTA) only if the military judge finds that the totality of circumstances render it reliable and probative, and the interests of justice would best be served by allowing the commission members to hear the evidence. S. 3930 provides a different standard for the admissibility of statements obtained through coercion that does not amount to torture depending on whether the statement was obtained prior to or after the enactment of the DTA. Statements elicited through such methods prior to the DTA would be admissible if the military judge finds the "totality of circumstances under which the statement was made renders it reliable and possessing sufficient probative value" and "the interests of justice would best be served" by admission of the statement. Statements taken after passage of the DTA would be admissible if, in addition to the two criteria above, the military judge finds that "the interrogation methods used to obtain the statement do not violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution." H.R. 6054, S. 3881, and S. 3861 provide that "[a]n otherwise admissible statement, including a statement allegedly obtained by coercion, shall not be admitted in evidence in a military commission under this chapter if the military judge finds that the circumstances under which the statement was made render the statement unreliable or lacking in probative value." CRS-36 Classified Evidence. All of the bills under discussion include provisions for the protection of classified information,185 generally permitting the substitution of redacted documents, unclassified summaries of documents, or statements setting forth what the classified information would tend to prove. S. 3901 contains procedures that are similar to those provided in Military Rule of Evidence 505 for application at courts-martial. Classified information is to be protected during all stages of proceedings and is privileged from disclosure for national security purposes. Whenever the original classification authority or head of the agency concerned certifies in writing that particular evidence and its sources have been declassified to the maximum extent possible, the military judge may authorize, "to the extent practicable in accordance with the rules applicable in trials by court-martial," the "deletion of specified items of classified information from documents made available to the accused"; the substitution of a "portion or summary of the information"; or "the substitution of a statement admitting relevant facts that the classified information would tend to prove." The military judge must consider a claim of privilege and review any supporting materials in camera, and is not permitted to disclose the privileged information to the accused. Proposed 10 U.S.C. § 949d(c)(4). Similar substitutions would be permissible in the context of discovery (see infra). Proposed 10 U.S.C. § 949j(c). S. 3901 provides a guarantee that the accused must have the right to "examine and respond to all evidence considered by the military commission on the issue of guilt or innocence and for sentencing," and to "be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d of this title." Proposed 10 U.S.C. § 949a. Section 949d permits the exclusion of the accused only for disruptive behavior. S. 3930 retains these provisions, and also includes a new subsection (e) to provide for the use of classified evidence at trial, to replace the provisions for classified information under proposed § 949(c) in S. 3901. Under the procedures outlined, the government would be permitted to claim a privilege with respect to information if the head of an executive or military department or agency asserts the information is properly classified and disclosure would be detrimental to the national security, without requiring a certification that such information had been declassified to the maximum extent possible. When the government claims such a privilege, the military judge may authorize, "to the extent practicable," the "deletion of specified items of classified information from documents made available to the accused"; the substitution of a "portion or summary of the information"; or "the substitution of a statement admitting relevant facts that the classified information would tend to prove." Proposed § 949d(e)(2). The provision specifically allows the introduction of such alternative evidence to protect classified "sources, methods, or activities by which the United States acquired the evidence" as long as the evidence is "reliable." 185 Defined in proposed § 948a as "[a]ny information or material that has been determined by the United States Government pursuant to statute, Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security" and "restricted data, as that term is defined in section 11y of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y))." CRS-37 The military judge may require that the defense and the commission members be permitted to view an unclassified summary of the sources, methods, or activities, to the extent practicable and consistent with national security. Proposed 10 U.S.C. § 949d(e)(2). It does not appear that the defense counsel or the accused is permitted to present arguments to the military judge in opposition to the government's claim of privilege. H.R. 6054, S. 3886, and S. 3861 provide for the exclusion of the accused from portions of his trial in order to allow classified information to be presented to panel members but not disclosed to the accused. Under these bills, the military judge would have authority to prevent the accused from attending a portion of the trial only after specifically finding that the exclusion of the accused is necessary to prevent "identifiable damage to the national security, including [by disclosing] intelligence or law enforcement sources, methods, or activities"; or is "necessary to ensure the physical safety of individuals"; or is necessary "to prevent disruption of the proceedings by the accused"; and that the exclusion of the accused "is no broader than necessary"; and "will not deprive the accused of a full and fair trial." Proposed 10 U.S.C. § 949d(e). Discovery and Mandatory Provision of Exculpatory Information. Each of the bills provides that defense counsel is to be afforded a reasonable opportunity to obtain witnesses and other evidence, including evidence in the possession of the United States, as specified in regulations prescribed by the Secretary of Defense. The military commission is authorized to compel witnesses under U.S. jurisdiction to appear. The military judge may authorize discovery in accordance with rules prescribed by the Secretary of Defense to redact classified information or to provide an unclassified summary or statement describing the evidence. Proposed 10 U.S.C. § 949j. Under H.R. 6054, S. 3861 and S. 3886, the trial counsel is obligated to disclose exculpatory evidence of which he is aware to the defense, but such information, if classified, is available to the accused only in a redacted or summary form, and only if making the information available is possible without compromising intelligence sources, methods, or activities, or other national security interests. Classified information is to be provided to military defense counsel, but civilian counsel is to have access only if he or she has the appropriate security clearance and such access is consistent with any procedures the Secretary of Defense implements for the protection of classified information. Defense counsel would not be able to share such information with the accused, which many observers assert could impair the defense's ability to refute any such evidence. S. 3901 requires trial counsel to make available to the defense not only exculpatory information, but also any that would tend to "reduce the degree of guilt of the accused." It further provides that the military judge may authorize substitutions for classified information pursuant to rules similar to the rules that apply in courts-martial, to the extent practicable. Proposed 10 U.S.C. § 949j. S. 3930 provides for the mandatory provision of exculpatory information only (defined as exculpatory evidence that the prosecution would be required to disclose CRS-38 in a general court-martial186), and does not permit defense counsel or the accused to view classified information. The military judge would be authorized to permit substitute information, including when trial counsel moves to withhold information pertaining to the sources, methods, or activities by which the information was acquired. The military judge may (but need not) require that the defense and the commission members be permitted to view an unclassified summary of the sources, methods, or activities, to the extent practicable and consistent with national security. Proposed 10 U.S.C. § 949j. Post-Trial Procedure and Interlocutory Appeals. The DTA introduced an appellate mechanism for limited review of Combatant Status Review Tribunal (CSRT) determinations and final decisions of military commissions.187 S. 3901 would modify the DTA so that appeals would be heard in the Court of Appeals for the Armed Forces (CAAF) rather than the Court of Appeals for the District of Columbia Circuit. Proposed 10 U.S.C. § 950f. The CAAF would have the authority to review appeals of final decisions by the accused or interlocutory appeals by the government of military commission rulings that terminate proceedings of the military commission, exclude material evidence, or relate to the closure of hearings, the exclusion of the accused from proceedings, or the provision of substitute evidence to protect classified information. Proposed 10 U.S.C. § 950d. The defense would not have an opportunity to submit an interlocutory appeal in the event of rulings that are unfavorable to the accused. The government would not be permitted to appeal any ruling of a military commission that amounts to a finding of not guilty of any charge or specification. The scope of review would be limited to matters of law, and decisions could only be overturned if an error of law "materially prejudices the substantial rights of the accused." Proposed 10 U.S.C. §§ 950a and 950f. S. 3930, S. 3861, S. 3886, and H.R. 6054 would provide for similar appellate rules, but would route appeals through the Court of Military Commission Review (CMCR), a new body to be established by the Secretary of Defense, who would have the authority to promulgate procedural rules governing its operation. The CMCR would be comprised of appellate military judges who meet the same qualifications as military judges or comparable qualifications for civilian judges. Once the CMCR has approved the final decision of a military commission, the accused would have the right to petition for a determination by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit), pursuant to the section 1005(e)(3) of the DTA. The government would be permitted to submit interlocutory appeals to the 186 It is not clear what information would be required to be provided under this subsection. Discovery at court-martial is controlled by R.C.M. 701, which requires trial counsel to provide to the defense any papers accompanying the charges, sworn statements in the possession of trial counsel that relate to the charges, and all documents and tangible objects within the possession or control of military authorities that are material to the preparation of the defense or that are intended for use in the prosecution's case-in-chief at trial. Exculpatory evidence appears to be a subset of "evidence favorable to the defense," which includes evidence that tends to negate the guilt of the accused of an offense charged, reduce the degree of guilt, or reduce the applicable punishment. 187 For more information about the DTA provisions concerning appellate review and habeas corpus actions, see CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and Kenneth Thomas. CRS-39 CMCR of adverse rulings pertaining to the admission of evidence or that terminates commission proceedings with respect to a charge or specification (except for a ruling that amounts to a finding of not guilty), and in the event of an adverse ruling by the CMCR, would be permitted to appeal to the D.C. Circuit. The accused would not be permitted to appeal an adverse interlocutory ruling. The following charts provide a comparison of the proposed military tribunals under the regulations issued by the Department of Defense, standard procedures for general courts-martial under the Manual for Courts-Martial, and military tribunals as proposed by H.R. 6054 and S. 3886, and S. 3901. Table 1 compares the legal authorities for establishing military tribunals, the jurisdiction over persons and offenses, and the structures of the tribunals. Table 2, which compares procedural safeguards incorporated in the DOD regulations and the UCMJ, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts, in order to facilitate comparison of the proposed legislation to safeguards provided in federal court, the international military tribunals that tried World War II crimes at Nuremberg and Tokyo, and contemporary ad hoc tribunals set up by the UN Security Council to try crimes associated with hostilities in the former Yugoslavia and Rwanda. CRS-40 Table 1. Comparison of Courts-Martial and Military Commission Rules Military General Courts Commission Order H.R. 6054 S. 3901/S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) Authority U.S. Constitution, U.S. Constitution, U.S. Constitution, U.S. Constitution, U.S. Constitution, Article I, § 8. Article II; Presidential Article I, § 8. Article I, § 8. Article I, § 8. Military Order of Nov. 13, 2001 (M.O). Procedure Rules are provided by Rules are issued by The Secretary of The Secretary of The Secretary of the Uniform Code of the Secretary of Defense may Defense may Defense may Military Justice Defense pursuant to prescribe rules of prescribe rules of prescribe rules of (UCMJ), chapter 47, the M.O. No other evidence and evidence and evidence and title 10, and the Rules rules apply procedure for trial by procedure for trial by procedure for trial by for Courts-Martial (presumably a military a military a military (R.C.M.) and the excluding the UCMJ). commission. commission. The commission. Military Rules of § 1. Proposed 10 U.S.C. § rules may not be Proposed 10 U.S.C. § Evidence (Mil. R. 949a(a). inconsistent with the 949a(a). Evid.), issued by the The President new chapter 47a of President pursuant to declared it Congressional notice title 10, and rules of art. 36, UCMJ. "impracticable" to is required not later procedure and 10 U.S.C. § 836. employ procedures than 60 days prior to evidence applicable to used in federal court, the effective date of courts-martial under pursuant to 10 U.S.C. any change in the UCMJ are to § 836. procedures. apply to military Proposed 10 U.S.C. § commissions except CRS-41 Military General Courts Commission Order H.R. 6054 S. 3901/S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) 949a(c). where otherwise specified. Proposed 10 U.S.C. § 949a(a). The Secretary of Defense, in consultation with the Attorney General, may make exceptions to UCMJ procedural rules "as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need." Proposed § 949a(b). However, the rules must include certain rights as listed in § CRS-42 Military General Courts Commission Order H.R. 6054 S. 3901/S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) 949a(b)(2). Specific UCMJ provisions the Secretary may except are listed in § 949a(b)(3). Jurisdiction over Members of the Individual subject to Any "alien unlawful Covers "alien Covers unlawful Persons armed forces, cadets, M.O., determined by combatant" is subject unlawful enemy enemy combatants, midshipmen, President to be: to trial by military combatants engaged proposed 10 U.S.C. § reservists while on 1. a non-citizen, and commission. in hostilities against 948c, defined as any inactive-duty training, 2. a member of Al Proposed 10 U.S.C. § the United States for person who has been members of the Qaeda or person who 948c. violations of the law determined to be "part National Guard or Air has engaged in acts of war and other of or affiliated with a National Guard when related to terrorism An "unlawful enemy offenses specifically force or organization, in federal service, against the United combatant" is an made triable by including but not prisoners of war in States, or who has individual determined military commission limited to al Qaeda, custody of the armed harbored one or more under the authority of as provided in chapter the Taliban, any forces, civilian such individuals the President of the 47 of title 10, United international terrorist employees and is referred to the Secretary of Defense States Code, and organization, or accompanying the commission by the "to be part of or chapter 47A of title associated forces, armed forces in time Appointing Authority. affiliated with a force 10, United States engaged in hostilities of declared war, and § 3(A). or organization Code (as enacted by against the United certain others, (including al Qaeda, this Act)." States or its CRS-43 Military General Courts Commission Order H.R. 6054 S. 3901/S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) including "persons the Taliban, any § 3; Proposed 10 cobelligerents in within an area leased international terrorist U.S.C. § 948c. violation of the law of by or otherwise organization, or war; to have reserved or acquired associated forces) that An "`unlawful enemy committed a hostile for the use of the is engaged in combatant' means an act in aid of such a United States." hostilities against the individual engaged in force or organization 10 U.S.C. § 802; United States or its hostilities against the so engaged; or to have United States v. co-belligerents in United States who is supported hostilities Averette, 17 USCMA violation of the law of not a lawful enemy in aid of such a force 363 (1968) (holding war; to have combatant." or organization so "in time of war" to committed a hostile Proposed 10 U.S.C. § engaged"; including mean only wars act in aid of such a 948a(4). any individual declared by Congress. force or organization previously determined Individuals who are so engaged; or to have "Lawful combatant" by a Combatant subject to military supported hostilities is defined in terms of Status Review tribunal jurisdiction in aid of such a force GPW Art. 4. Proposed Tribunal "to have under the law of war or organization so 10 U.S.C. § 948a(3). been properly may also be tried by engaged," including detained as an enemy general court martial. any individual combatant"; but 10 U.S.C. § 818. previously determined excluding persons by a Combatant determined to be Status Review lawful combatants, or Tribunal "to have prisoners of war or CRS-44 Military General Courts Commission Order H.R. 6054 S. 3901/S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) been properly protected persons detained as an enemy within the meaning of combatant"; but the Geneva excluding persons Conventions. determined to be Proposed 10 U.S.C. § lawful combatants, or 948a. prisoners of war or protected persons within the meaning of the Geneva Conventions. Proposed 10 U.S.C. § 948a. Jurisdiction over Any offenses made Offenses in violation Offenses include the Defined crimes are Offenses include the Offenses punishable by the of the laws of war and following: murder of the following, when following "when UCMJ; offenses all other offenses protected persons; committed in the committed in the subject to trial by triable by military attacking civilians, context of an armed context of and military tribunal commission. § 3(B). civilian objects, or conflict: murder of associated with armed under the law of war. protected property; protected persons; conflict": murder of 10 U.S.C. § 818. M.C.I. No. 2 clarifies pillaging; denying attacking civilians, protected persons; that terrorism and quarter; taking civilian objects, or attacking civilians, related crimes are hostages; employing protected property; civilian objects, or "crimes triable by poison or analogous pillaging; denying protected property; CRS-45 Military General Courts Commission Order H.R. 6054 S. 3901/S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) military commission." weapons; using quarter; taking pillaging; denying These include (but are protected persons or hostages; employing quarter; taking not limited to): willful property as shields; poison or similar hostages; employing killing of protected torture, cruel or weapons; using poison or analogous persons; attacking inhuman treatment; protected persons or weapons; using civilians; attacking intentionally causing property as shields; protected persons or civilian objects; serious bodily injury; torture, cruel, unusual, property as shields; attacking protected mutilating or or inhumane torture, cruel or property; pillaging; maiming; murder in treatment or inhuman treatment; denying quarter; violation of the law of punishment; intentionally causing taking hostages; war; destruction of intentionally causing serious bodily injury; employing poison or property in violation serious bodily injury; mutilating or analogous weapons; of the law of war; mutilating or maiming; murder in using protected using treachery or maiming; murder in violation of the law of persons as shields; perfidy; improperly violation of the law of war; destruction of using protected using a flag of truce war; destruction of property in violation property as shields; or distinctive emblem; property in violation of the law of war; torture; causing intentionally of the law of war; using treachery or serious injury; mistreating a dead using treachery or perfidy; improperly mutilation or body; rape; hijacking perfidy; improperly using a flag of truce maiming; use of or hazarding a vessel using a flag of truce or distinctive emblem; treachery or perfidy; or aircraft; terrorism; or distinctive emblem; intentionally improper use of flag providing material intentionally mistreating a dead CRS-46 Military General Courts Commission Order H.R. 6054 S. 3901/S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) of truce; improper use support for terrorism; mistreating a dead body; rape; hijacking of protective wrongfully aiding the body; rape; hijacking or hazarding a vessel emblems; degrading enemy; spying, or hazarding a vessel or aircraft; terrorism; treatment of a dead contempt; perjury and or aircraft; terrorism; providing material body; and rape; obstruction of justice. providing material support for terrorism; hijacking or hazarding Proposed 10 U.S.C. § support for terrorism; wrongfully aiding the a vessel or aircraft; 950v. Conspiracy (§ wrongfully aiding the enemy; spying, terrorism; murder by 950v(27)), attempts (§ enemy; spying, contempt; perjury and an unprivileged 950t), and solicitation contempt; perjury and obstruction of justice. belligerent; (§ 950u) to commit obstruction of justice. Proposed 10 U.S.C. § destruction of the defined acts are Conspiracy, attempts, 950v. property by an also punishable. and solicitations to unprivileged commit the defined Conspiracy (§ belligerent; aiding the acts is also 950v(27)), attempts (§ enemy; spying; punishable. Proposed 950t), and solicitation perjury or false 10 U.S.C. § 950aa et (§ 950u) to commit testimony; and seq. the defined acts are obstruction of justice; also punishable. aiding or abetting; solicitation; command/superior responsibility - perpetrating; CRS-47 Military General Courts Commission Order H.R. 6054 S. 3901/S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) command/superior responsibility - misprision; accessory after the fact; conspiracy; and attempt. Composition A military judge and From three to seven A military judge and A military judge and A military judge and not less than five members, as at least five members, at least five members, at least five members, members, or if determined by the proposed 10 U.S.C. § proposed 10 U.S.C. § proposed 10 U.S.C. § requested, except in Appointing Authority. 948m, unless the 948m, unless the 948m, unless the capital cases, a § 4(A)(2). death penalty is death penalty is death penalty is military judge alone. sought, in which case sought, in which case sought, in which case R.C.M. 501. no fewer than 12 no fewer than 12 no fewer than 12 members must be members must be members must be included, proposed § included, proposed § included, proposed § 949m(c). 949m(c). 949m(c). Source: Congressional Research Service. CRS-48 Table 2. Comparison of Procedural Safeguards Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) Presumption If the defendant fails The accused shall be Before a vote is Before a vote is Before a vote is Before a vote is of Innocence to enter a proper presumed innocent taken on the taken on the taken on the taken on the plea, a plea of not until proven guilty. findings, the findings, the findings, the findings, the guilty will be § 5(B). military judge must military judge must military judge must military judge must entered. R.C.M. instruct the instruct the instruct the instruct the 910(b). Commission commission commission commission commission members must base members "that the members "that the members "that the members "that the Members of court their vote for a accused must be accused must be accused must be accused must be martial must be finding of guilty on presumed to be presumed to be presumed to be presumed to be instructed that the evidence admitted at innocent until his innocent until his innocent until his innocent until his "accused must be trial. §§ 5(C); 6(F). guilt is established guilt is established guilt is established guilt is established presumed to be by legal and by legal and by legal and by legal and innocent until the The Commission competent evidence competent evidence competent evidence competent evidence accused's guilt is must determine the beyond reasonable beyond reasonable beyond reasonable beyond reasonable established by legal voluntary and doubt." Proposed 10 doubt." Proposed 10 doubt." Proposed 10 doubt." Proposed 10 and competent informed nature of U.S.C. § 949l. U.S.C. § 949l. U.S.C. § 949l. U.S.C. § 949l. evidence beyond a any plea agreement reasonable doubt." submitted by the If an accused If an accused refuses If an accused refuses If an accused refuses R.C.M. 920(e). accused and refuses to enter a to enter a plea or to enter a plea or to enter a plea, a approved by the plea or pleads guilty pleads guilty but pleads guilty but plea of not guilty is Appointing but provides provides provides entered. If an CRS-49 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) The accused shall be Authority before inconsistent inconsistent inconsistent accused enters a properly attired in admitting it as testimony, or if it testimony, or if it testimony, or if it plea of guilty but uniform with grade stipulation into appears that he appears that he lacks appears that he lacks provides testimony insignia and any evidence. § 6(B). lacks proper proper proper inconsistent with the decorations to which understanding of the understanding of the understanding of theplea, or if it appears entitled. Physical meaning and effect meaning and effect meaning and effect that he lacks proper restraint shall not be of the guilty plea, of the guilty plea, of the guilty plea, understanding of the imposed unless the commission the commission the commission meaning and effect prescribed by the must treat the plea must treat the plea must treat the plea of the guilty plea, military judge. as denying guilt. as denying guilt. as denying guilt. the commission R.C.M. 804. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. must treat the plea § 949i. § 949i. § 949i. as denying guilt. Proposed 10 U.S.C. § 949i. Right to Coerced confessions Not provided. Statements elicited Article 31, UCMJ, Article 31, UCMJ, Statements elicited Remain Silent or confessions made Neither the M.O. through torture may is expressly made is expressly made through torture may in custody without nor M.C.O. requires not be entered into inapplicable. inapplicable. not be entered into statutory equivalent a warning or bars evidence except to Proposed 10 U.S.C. Proposed 10 U.S.C. evidence except to of Miranda warning the use of prove a charge of § 948b(c). § 948b(c). prove a charge of are not admissible statements made torture. Evidence torture. Evidence as evidence, unless a during military allegedly obtained Confessions Confessions allegedly obtained narrow "public interrogation, or any by coercion is allegedly elicited allegedly elicited by coercion is safety" exception coerced statement, inadmissible if the through coercion or through coercion or inadmissible if the CRS-50 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) applies. Art. 31, from military military judge findscompulsory self- compulsory self- military judge finds UCMJ, 10 U.S.C. § commission it to be unreliable or incrimination that incrimination that it to be unreliable or 831. proceedings. Art. lacking in probativeare otherwise are otherwise lacking in probative 31(a), UCMJ (10 value. Proposed 10 admissible are not to admissible are not to value. Proposed 10 Once a suspect is in U.S.C. § 831) bars U.S.C. § 948r. be excluded at trial be excluded at trial U.S.C. § 948r. custody or charges persons subject to it unless violates unless violates have been preferred, from compelling Statements made by section 948r, which section 948r. Procedural rules the suspect or any individual to the accused during provides for the Proposed 10 U.S.C. may provide that accused has the make a confession, an interrogation, exclusion of § 949a(b)(3)(B). otherwise right to have but there does not including statements extracted admissible counsel present for appear to be a questioning by through practices Section 948r statements by the questioning. Once remedy in case of foreign or U.S. amounting to torture provides that accused shall not be the right to counsel violation. No person military, or cruel, inhuman, statements elicited excluded on the is invoked, subject to the UCMJ intelligence, or or degrading, through torture may grounds of coercion questioning material may compel any criminal treatment, except as not be entered into or compulsory self- to the allegations or person to give investigative evidence against a evidence except to incrimination so charges must stop. evidence before any personnel, are person charged with prove a charge of long as the evidence Mil. R. Evid. military tribunal if admissible only if such treatment. torture. With respect is admissible under 305(d)(1). the evidence is not the accused is Proposed 10 U.S.C. to statements proposed § 948r. material to the issue present for its § 949a(a)(3)(B). obtained through Proposed 10 U.S.C. The prosecutor must and may tend to admission or the coercion that does § 949a(b)(3)(B). notify the defense of degrade him. evidence is Statements obtained not amount to any incriminating 10 U.S.C. § 831. "otherwise provided through methods torture, the bill Statements made by CRS-51 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) statements made by to the accused." that do not amount applies a different the accused during the accused that are Proposed 10 U.S.C. to cruel, inhuman or standard depending an interrogation, relevant to the case § 949d(f). degrading treatment on whether the including prior to the under the DTA, are statements were questioning by arraignment. admissible only if obtained prior to the foreign or U.S. Motions to suppress the totality of enactment of the military, such statements circumstances DTA, in which case intelligence, or must be made prior render it reliable and statements would be criminal to pleading. probative, and the admissible if the investigative Mil. R. Evid. 304. interests of justice military judge finds personnel, are Interrogations would best be the "totality of admissible only if conducted by served by allowing circumstances under the accused is foreign officials do the members to hear which the statement present for its not require warnings the evidence. was made renders it admission or the or presence of Proposed 10 U.S.C. reliable and evidence is counsel unless the § 948r. possessing sufficient "otherwise provided interrogation is probative value" and to the accused." instigated or "the interests of Proposed 10 U.S.C. conducted by U.S. justice would best § 949d(f). military personnel. be served" by Mil. R. Evid. 305. admission of the statement. Statements taken CRS-52 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) after passage of the DTA would be admissible if, in addition to the two criteria above, the military judge finds that "the interrogation methods used to obtain the statement do not violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution." Proposed 10 U.S.C. § 948r. CRS-53 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) Freedom from "Evidence obtained Not provided; no Not provided. Procedural rules Procedural rules Not provided. Unreasonable as a result of an exclusionary rule Evidence is may provide that may provide that Evidence is Searches & unlawful search or appears to be generally permitted evidence gathered evidence gathered generally permitted Seizures seizure ... is available. if it has probative outside the United outside the United if it has probative inadmissible against However, monitored value to a States without States without value to a the accused ..." conversations reasonable person, authorization or a authorization or a reasonable person, unless certain between the unless it is obtained search warrant may search warrant may unless it is obtained exceptions apply. detainee and defense under circumstances be admitted into be admitted into under circumstances Mil. R. Evid. 311. counsel may not be that would render it evidence. Proposed evidence. Proposed that would render it communicated to unreliable. 10 U.S.C. § 949a. 10 U.S.C. § 949a. unreliable. "Authorization to persons involved in Proposed 10 U.S.C. Proposed 10 U.S.C. search" may be oral prosecuting the §§ 948r, 949a. §§ 948r, 949a. or written, and may accused or used at be issued by a trial. M.C.O. No. 3. military judge or an officer in command No provisions for of the area to be determining searched, or if the probable cause or area is not under issuance of search military control, warrants are with authority over included. persons subject to military law or the CRS-54 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) law of war. It must Insofar as searches be based on and seizures take probable cause. place outside of the Mil. R. Evid. 315. United States against non-U.S. persons, the Fourth Interception of wire Amendment may and oral not apply. communications United States v. within the United Verdugo-Urquidez, States requires 494 U.S. 259 judicial application (1990). in accordance with 18 U.S.C. §§ 2516 et seq. Mil. R. Evid. 317. A search conducted by foreign officials is unlawful only if the accused is subject to "gross and brutal treatment." Mil. R. CRS-55 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) Evid. 311(c). Assistance of The defendant has a M.C.O. 1 provides At least one At least one At least one At least one Effective right to military that the accused qualifying military qualifying military qualifying military qualifying military Counsel counsel at must be represented defense counsel is defense counsel is to defense counsel is to defense counsel is to government "at all relevant to be detailed "as be detailed "as soon be detailed "as soon be detailed "as soon expense. The times" (presumably, soon as practicable as practicable after as practicable after as practicable after defendant may once charges are after the swearing of the swearing of the swearing of the swearing of choose counsel, if approved until charges...." charges...." charges...." charges...." that attorney is findings are final Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. reasonably -- but not for § 948k. § 948k. § 948k(a)(3). § 948k. available, and may individuals who are hire a civilian detained but not The accused may The accused may The accused may The accused may attorney in addition charged) by also hire a civilian also hire a civilian also hire a civilian also hire a civilian to military counsel. detailed defense attorney who is a attorney who is a attorney who is a attorney who is a Art 38, UCMJ, 10 counsel. U.S. citizen, is U.S. citizen, is U.S. citizen, is U.S. citizen, is U.S.C. § 838. § 4(C)(4). admitted to the bar admitted to the bar admitted to the bar admitted to the bar in any state, district, in any state, district, in any state, district, in any state, district, Appointed counsel The accused is or possession, has or possession, has or possession, has or possession, has must be certified as assigned a military never been never been never been never been qualified and may judge advocate to disciplined, has a disciplined, has a disciplined, has a disciplined, has a not be someone who serve as counsel, but SECRET clearance SECRET clearance SECRET clearance SECRET clearance has taken any part in may request to (or higher, if (or higher, if (or higher, if (or higher, if the investigation or replace or augment necessary for a necessary for a necessary for a necessary for a CRS-56 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) prosecution, unless the detailed counsel particular case), and particular case), and particular case), and particular case), and explicitly requested with a specific agrees to comply agrees to comply agrees to comply agrees to comply by the defendant. officer, if that with all applicable with all applicable with all applicable with all applicable Art. 27, UCMJ, 10 person is available. rules. If civilian rules. If civilian rules. If civilian rules. If civilian U.S.C. § 827. § 4(C)(3)(a). counsel is hired, the counsel is hired, the counsel is hired, the counsel is hired, the detailed military detailed military detailed military detailed military The accused may counsel serves as counsel serves as counsel serves as counsel serves as In espionage cases also hire a civilian associate counsel. associate counsel. associate counsel. associate counsel. § or other cases in attorney who is a Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. 949c(b). which classified U.S. citizen, is § 949c(b). § 949c(b). § 949c(b). information may be admitted to the bar Defense attorneys necessary to prove a in any state, district, Defense attorneys Classified Self-representation are not permitted to charge or defense, or possession, has a are not permitted to information is to be is permitted if the share classified the defense is SECRET clearance share classified treated in right to counsel is information with permitted to request (or higher, if information with accordance with the waived and the their clients or with the information and necessary for a their clients or with rules applicable in accused obeys trial any other person not to have the military particular case), and any other person not general courts- rules. Proposed 10 entitled to receive it. judge review in agrees to comply entitled to receive it. martial for making U.S.C. § Proposed 10 U.S.C. camera information with all applicable Proposed 10 U.S.C. such information 949a(b)(2)(D). § 949j(c)(5). for which the rules. The civilian § 949j(d)(5). available to the government asserts attorney does not accused. Proposed Trial counsel need Military defense a privilege. The replace the detailed Military defense 10 U.S.C. § 949j(c). not provide defense counsel must be accused and the counsel, and is not counsel must be counsel with any present for all CRS-57 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) defense attorney are guaranteed access to present for all There is no evidence that is proceedings and entitle to be present classified evidence proceedings and provision similar to classified, but in the have access to all for such in camera or closed hearings. § have access to all § 949d(e) of the case the trial classified evidence hearings, and 4(C)(3)(b). classified evidence Administration's counsel moves for admitted. Civilian although the admitted. Civilian proposal to allow permission to defense counsel is government is not Defense Counsel defense counsel is the exclusion of the introduce evidence permitted to be generally required to may present permitted to be accused from without disclosing present and to give them access to evidence at trial and present and to portions of the trial the intelligence participate in all the classified cross-examine participate in all where classified sources and methods trial proceedings, information itself, witnesses for the trial proceedings, information is by which such and is to be given the military judge prosecution. § 5(I). and is to be given presented. evidence was access to classified may disapprove of access to classified acquired, the evidence to be any summary the The Appointing evidence to be No attorney-client military judge may admitted at trial if government Authority must admitted at trial if privilege is require that the they have the provides for the order such resources they have the mentioned. defense be permitted necessary security purpose of be provided to the necessary security Adverse personnel to view an clearances and permitting the defense as he deems clearances and actions may not be unclassified "such presence and defense to prepare necessary for a full "such presence and taken against summary of the access are consistent adequately for the and fair trial." § access are consistent defense attorneys sources, methods, or with regulations that hearing, and may 5(H). with regulations that because of the zeal activities by which the Secretary may subject the the Secretary may with which such the United States prescribe to protect government to Communications prescribe to protect officer, in acting as acquired the classified sanctions if it between defense classified counsel, represented evidence, to the information." CRS-58 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) declines to make the counsel and the information." any accused before a extent practicable Proposed 10 U.S.C. necessary accused are subject Proposed 10 U.S.C. military and consistent with § 949d(e). information to monitoring by the § 949d(e). commission..." national security. It available. government. Proposed 10 U.S.C. does not appear that No attorney-client Mil. R. Evid. 505. Although At all times, the § 949b(b). the defense counsel privilege is information accused must have or the accused is mentioned. The military judge obtained through defense counsel permitted to present may order all such monitoring with the appropriate argument to the Adverse personnel persons requiring may not be used as clearance to military judge in actions may not be security clearances evidence against the participate in opposition to the taken against to cooperate with accused, M.C.I. No. proceedings. government's claim defense attorneys investigatory 3, the monitoring Proposed 10 U.S.C. of privilege. because of the zeal personnel in any could arguably have § 949d(e)(4)(D). Proposed 10 U.S.C. with which such investigations which a chilling effect on § 949d(e)(2). officer, in acting as are necessary to attorney-client No attorney-client counsel, represented obtain the security conversations, privilege is No attorney-client any accused before a clearance necessary possibly hampering mentioned. privilege is military to participate in the the ability of mentioned. commission...." proceedings. defense counsel to Adverse personnel Adverse personnel Proposed 10 U.S.C. Mil. R. Evid. provide effective actions may not be actions may not be § 949b. 505(g). representation. taken against taken against defense attorneys defense attorneys because of the zeal because of the zeal CRS-59 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) The attorney-client with which such with which such privilege is honored. officer, in acting as officer, in acting as Mil. R. Evid. 502. counsel, represented counsel, represented any accused before any accused before a a military military commission...." commission..." Proposed 10 U.S.C. Proposed 10 U.S.C. § 949b. § 949b(b). Right to The right to Probably not Charges and Article 32, UCMJ, Article 32, UCMJ, Charges and Indictment indictment by grand applicable to specifications hearings are hearings are specifications and jury is explicitly military against an accused expressly made expressly made against an accused Presentment excluded in "cases commissions, are to be signed by a inapplicable. inapplicable. are to be signed by a arising in the land or provided the person subject to Proposed 10 U.S.C. Proposed 10 U.S.C. person subject to naval forces." accused is an enemy UCMJ swearing § 948b(c). § 948b(c). UCMJ swearing Amendment V. belligerent. under oath that the under oath that the See Ex parte Quirin, signer has "personal Charges and Charges and signer has "personal However, a process 317 U.S. 1 (1942). knowledge of, or specifications specifications knowledge of, or similar to a grand reason to believe, against an accused against an accused reason to believe, jury is required by The Office of the the matters set forth are to be signed by a are to be signed by a the matters set forth article 32, UCMJ. Chief Prosecutor therein," and that person subject to person subject to therein;" and that 10 U.S.C. § 832. prepares charges for they are "true in fact UCMJ swearing UCMJ swearing they are "true in fact referral by the to the best of his under oath that the under oath that the to the best of his Appointing knowledge and signer has "personal signer has "personal knowledge and CRS-60 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) Whenever an Authority. belief." The knowledge of, or knowledge of, or belief." The offense is alleged, § 4(B). accused is to be reason to believe, reason to believe, accused is to be the commander is There is no informed of the the matters set forth the matters set forth informed of the responsible for requirement for an charges and therein;" and that therein;" and that charges and initiating a impartial specifications they are "true in fact they are "true in fact specifications preliminary inquiry investigation prior against him as soon to the best of his to the best of his against him as soon and deciding how to to a referral of as practicable after knowledge and knowledge and as practicable after dispose of the charges. The charges are sworn. belief." The belief." The charges are sworn. offense. Commission may Proposed 10 U.S.C. accused is to be accused is to be Proposed 10 U.S.C. R.C.M. 303-06. adjust a charged § 948q. informed of the informed of the § 948q. The accused must offense in a manner charges and charges and be informed of the that does not change specifications specifications charges as soon as the nature or against him as soon against him as soon practicable. increase the as practicable after as practicable after Art. 30, UCMJ, 10 seriousness of the charges are sworn. charges are sworn. U.S.C. § 830. charge. § 6(F). Proposed 10 U.S.C. Proposed 10 U.S.C. § 948q. § 948q. Right to Charges and Copies of approved The trial counsel The trial counsel The trial counsel The trial counsel Written specifications must charges are provided assigned is assigned is assigned is assigned is Statement of be signed under oath to the accused and responsibility for responsibility for responsibility for responsibility for Charges and made known to Defense Counsel in serving counsel a serving counsel a serving counsel a serving counsel a the accused as soon English and another copy of the charges copy of the charges copy of the charges copy of the charges CRS-61 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) as practicable. Art. language the upon the accused, in upon the accused, in upon the accused, in upon the accused, in 30, UCMJ, 10 accused English and, if English and, if English and, if English and, if U.S.C. § 830. understands, if appropriate, in appropriate, in appropriate, in appropriate, in appropriate. § 5(A). another language another language another language another language that the accused that the accused that the accused that the accused understands, understands, understands, understands, "sufficiently in "sufficiently in "sufficiently in "sufficiently in advance of trial to advance of trial to advance of trial to advance of trial to prepare a defense." prepare a defense." prepare a defense." prepare a defense." Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. § 948s. § 948s. § 948s. §948s. Right to be The presence of the The accused may be The military judge The accused may be The accused has the The military judge Present at accused is required present at every may prevent the excluded from right to be present at may prevent the Trial during arraignment, stage of trial before accused from attending portions of all sessions of the accused from at the plea, and at the Commission attending a portion the proceeding if the military commission attending a portion every stage of the unless the Presiding of the trial only military judge except deliberation of the trial only after court-martial unless Officer excludes the after specifically determines that the or voting, unless specifically finding the accused waives accused because of finding that the accused persists in exclusion of the that the exclusion of the right by disruptive conduct exclusion of the disruptive or accused is permitted the accused is voluntarily or for security accused is necessary dangerous conduct. under § 949d. necessary to prevent absenting him or reasons, or "any to prevent Proposed 10 U.S.C. Proposed 10 U.S.C. "identifiable CRS-62 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) herself from the other reason "identifiable § 949d(d). § 949a(b)(2)(B). damage to the proceedings after necessary for the damage to the national security, the arraignment or conduct of a full and national security, The accused may be including [by by persisting in fair trial." including [by excluded from disclosing] conduct that justifies §§ 4(A)(5)(a); 5(K); disclosing] attending portions of intelligence or law the trial judge in 6B(3). intelligence or law the proceeding if the enforcement ordering the enforcement military judge sources, methods, or removal of the sources, methods, or determines that the activities"; or is accused from the activities"; or is accused persists in "necessary to ensure proceedings. "necessary to ensure disruptive or the physical safety R.C.M. 801. the physical safety dangerous conduct. of individuals"; or is The government of individuals"; or is Proposed 10 U.S.C. necessary "to may introduce necessary "to § 949d(d). prevent disruption redacted or prevent disruption of the proceedings summarized of the proceedings Proposed § 949d(e) by the accused"; and versions of evidence by the accused"; (introduction of the exclusion of the to be substituted for and the exclusion of classified accused "is no classified the accused "is no information) does broader than information broader than not expressly permit necessary"; and properly claimed necessary"; and the exclusion of the "will not deprive the under privilege, but "will not deprive the accused from any accused of a full and there is no provision accused of a full and portion of the trial, fair trial." Proposed that would allow fair trial." Proposed but does not 10 U.S.C. § 949d. CRS-63 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) court-martial 10 U.S.C. § 949d. expressly preclude members (other than it, and mandates that the non-voting the military judge military judge) to "take suitable action view evidence that to safeguard ... is not seen by the classified accused. Mil. R. information," which Evid. 505. "may include the review of trial counsel's claim of privilege by the military judge in camera and on an ex parte basis," and the "delaying of procedures to permit trial counsel to consult with the department or agency concerned...." The Secretary of Defense may CRS-64 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) prescribe additional regulations "consistent with this section." Proposed 10 U.S.C. § 949d(e). Prohibition Courts-martial will Not provided, but Crimes punishable Crimes punishable Crimes punishable Crimes punishable against Ex not enforce an ex may be implicit in by military by military by military by military Post Facto post facto law, restrictions on commissions under commissions under commissions under commissions under Crimes including increasing jurisdiction over the new chapter are the new chapter are the new chapter are the new chapter are amount of pay to be offenses. See § contained in contained in contained in contained in forfeited for specific 3(B). subchapter VII. It subchapter VII. It subchapter VII. It subchapter VII. It crimes. includes the crime includes the crime includes the crime includes the crime Unite States v. M.C.I. No. 2 § 3(A) of conspiracy, of conspiracy, of conspiracy, of conspiracy, Gorki, 47 M.J. 370 provides that "no which a plurality of which a plurality of which a plurality of which a plurality of (1997). offense is the Supreme Court the Supreme Court the Supreme Court the Supreme Court cognizable in a trial in Hamdan v. in Hamdan v. in Hamdan v. in Hamdan v. by military Rumsfeld viewed as Rumsfeld viewed as Rumsfeld viewed as Rumsfeld viewed as commission if that invalid as a charge invalid as a charge invalid as a charge invalid as a charge offense did not exist of war crimes. of war crimes. of war crimes. of war crimes. prior to the conduct 126 S.Ct. 2749 126 S.Ct. 2749 126 S.Ct. 2749 126 S.Ct. 2749 in question." (2006). (2006). (2006). (2006). CRS-65 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) The bill declares The bill declares The bill declares that it "codif[ies] that it "codif[ies] that it "codif[ies] offenses that have offenses that have offenses that have traditionally been traditionally been traditionally been triable by military triable by military triable by military commissions," and commissions," and commissions," and that "because the that it "does not that it "does not [the defined crimes] establish new crimes establish new crimes (including that did not exist that did not exist provisions that before its before its incorporate establishment." establishment." definitions in other Proposed 10 U.S.C. Proposed 10 U.S.C. provisions of law) § 950bb. § 950p. are declarative of existing law, they do not preclude trial for crimes that occurred before the date of enactment." Proposed 10 U.S.C. § 950p. CRS-66 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) The bill expressly provides jurisdiction over the defined crimes, whether committed prior to, on or after September 11, 2001. Proposed 10 U.S.C. § 948d. Protection Double jeopardy The accused may "No person may, "No person may, "No person may, "No person may, against clause applies. not be tried again by without his consent, without his consent, without his consent, without his consent, Double See Wade v. Hunter, any Commission for be tried by a be tried by a be tried by a be tried by a Jeopardy 336 US 684, 688-89 a charge once a commission a commission a commission a commission a (1949). Commission's second time for the second time for the second time for the second time for the Art. 44, UCMJ finding becomes same offense." same offense." same offense." same offense." prohibits double final. (Jeopardy Jeopardy attaches Jeopardy attaches Jeopardy attaches Jeopardy attaches jeopardy, provides appears to attach when a guilty when a guilty when a guilty when a guilty for jeopardy to when the finding finding becomes finding becomes finding becomes finding becomes attach after becomes final, at final after review of final after review of final after review of final after review of introduction of least with respect to the case has been the case has been the case has been the case has been evidence. subsequent U.S. fully completed. fully completed. fully completed. fully completed. 10 U.S.C. § 844. military Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. General court- commissions.) § 949h. § 949h. § 949h. § 949h. CRS-67 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) martial proceeding § 5(P). The convening The convening The convening The convening is considered to be a authority may not authority may not authority may not authority may not federal trial for However, although revise findings or revise findings or revise findings or revise findings or double jeopardy a finding of Not order a rehearing in order a rehearing in order a rehearing in order a rehearing in purposes. Double Guilty by the any case to any case to any case to any case to jeopardy does not Commission may reconsider a finding reconsider a finding reconsider a finding reconsider a finding result from charges not be changed to of not guilty of any of not guilty of any of not guilty of any of not guilty of any brought in state or Guilty, either the specification or a specification or a specification or a specification or a foreign courts, reviewing panel, the ruling which ruling which ruling which ruling which although court- Appointing amounts to a finding amounts to a finding amounts to a finding amounts to a finding martial in such cases Authority, the of not guilty, or of not guilty, or of not guilty, or of not guilty, or is disfavored. Secretary of reconsider a finding reconsider a finding reconsider a finding reconsider a finding U. S. v. Stokes, 12 Defense, or the of not guilty of any of not guilty of any of not guilty of any of not guilty of any M.J. 229 (C.M.A. President may return charge, unless there charge, unless there charge, unless there charge, unless there 1982). the case for "further has been a finding has been a finding has been a finding has been a finding proceedings" prior of guilty under a of guilty under a of guilty under a of guilty under a Once military to the findings' specification laid specification laid specification laid specification laid authorities have becoming final. If a under that charge, under that charge, under that charge, under that charge, turned service finding of Not which sufficiently which sufficiently which sufficiently which sufficiently member over to Guilty is vacated alleges a violation. alleges a violation. alleges a violation. alleges a violation. civil authorities for and retried, double The convening The convening The convening The convening trial, military may jeopardy may be authority may not authority may not authority may not authority may not have waived implicated. increase the severity increase the severity increase the severity increase the severity CRS-68 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) jurisdiction for that The order does not of the sentence of the sentence of the sentence of the sentence crime, although it specify whether a unless the sentence unless the sentence unless the sentence unless the sentence may be possible to person already tried prescribed for the prescribed for the prescribed for the prescribed for the charge the by any other court offense is offense is offense is offense is individual for or tribunal may be mandatory. mandatory. mandatory. mandatory. another crime tried by a military Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. arising from the commission under § 950b(d)(2)(B). § 950b(d)(2)(B). § 950b(d)(2)(B). § 950b(d)(2)(B). same conduct. the M.O. The M.O. See 54 AM. JUR. 2D, reserves for the Military and Civil President the Defense §§ 227-28. authority to direct the Secretary of Defense to transfer an individual subject to the M.O. to another governmental authority, which is not precluded by the order from prosecuting the individual. This subsection could be CRS-69 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) read to authorize prosecution by federal authorities after the individual was subject to trial by military commission, although a federal court would likely dismiss such a case on double jeopardy grounds. M.O. § 7(e). Speedy & In general, accused The Commission is There is no right to There is no right to There is no right to There is no right to Public Trial must be brought to required to proceed a speedy trial, a speedy trial. a speedy trial. a speedy trial, trial within 120 days expeditiously, although the Article 10, UCMJ, Article 10, UCMJ, although the of the preferral of "preventing any military judge may 10 U.S.C. § 810, is 10 U.S.C. § 810, is military judge may charges or the unnecessary exclude evidence to expressly made expressly made exclude evidence to imposition of interference or avoid unnecessary inapplicable to inapplicable to avoid unnecessary restraint, whichever delay." delay. Proposed 10 military military delay. Proceedings date is earliest. § 6(B)(2). U.S.C. § 949a. commissions. commissions. are to be open to the R.C.M. 707(a). Failure to meet a Proposed 10 U.S.C. Proposed 10 U.S.C. public except where CRS-70 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) The right to a public specified deadline The military judge § 948b(c). § 948b(c). the military judge trial applies in does not create a may close all or part determines that courts-martial but is right to relief. § 10. of a trial to the Procedural rules are Procedural rules are closure of all or part not absolute. public only after to provide for the to provide for the of a proceeding is R.C.M. 806. The rules do not making a right of the accused right of the accused necessary "to The military trial prohibit detention determination that to suppress evidence to suppress evidence protect information judge may exclude without charge, or such closure is that would cause that would cause the disclosure of the public from require charges to be necessary to protect undue delay. undue delay. which could portions of a brought within a information, the Proposed 10 U.S.C. Proposed 10 U.S.C. reasonably be proceeding for the specific time period. disclosure of which § 949a. § 949a. expected to cause purpose of Proceedings "should would be harmful to identifiable damage protecting classified be open to the national security The military judge The military judge to the public interest information if the maximum extent interests or to the may close all or part may close all or part or the national prosecution possible," but the physical safety of of a trial to the of a trial to the security, including demonstrates an Appointing any participant. public only after public only after intelligence or law overriding need to Authority has broad Proposed 10 U.S.C. making a making a enforcement do so and the discretion to close § 949d. determination that determination that sources, methods, or closure is no hearings, and may such closure is such closure is activities" or "to broader than exclude the public necessary to protect necessary to protect ensure the physical necessary. or accredited press information, the information, the safety of United States v. from open disclosure of which disclosure of which individuals." Grunden, 2 M.J. 116 proceedings. would be harmful to would be harmful to Proposed 10 U.S.C. (CMA 1977); Mil. § 6(B)(3). national security national security § 949d. R. Evid. 505(j). interests or to the interests or to the CRS-71 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) physical safety of physical safety of any participant. any participant. Proposed 10 U.S.C. Proposed 10 U.S.C. § 949d. § 949d(c). Members of court Commission Commission Commission Commission Commission Burden & martial must be members may vote members are to be members are to be members are to be members are to be Standard of instructed that the for a finding of instructed that the instructed that the instructed that the instructed that the Proof burden of proof to guilty only if accused is presumed accused is presumed accused is presumed accused is presumed establish guilt is convinced beyond a to be innocent until to be innocent until to be innocent until to be innocent until upon the reasonable doubt, his "guilt is his "guilt is his "guilt is his "guilt is government and that based on evidence established by legal established by legal established by legal established by legal any reasonable admitted at trial, that and competent and competent and competent and competent doubt must be the accused is evidence beyond evidence beyond evidence beyond evidence beyond resolved in favor of guilty. reasonable doubt"; reasonable doubt"; reasonable doubt"; reasonable doubt"; the defendant. §§ 5(C); 6(F). that any reasonable that any reasonable that any reasonable that any reasonable R.C.M. 920(e). doubt as to the guilt doubt as to the guilt doubt as to the guilt doubt as to the guilt The burden of proof of the accused must of the accused must of the accused must of the accused must of guilt is on the be "resolved in be "resolved in be "resolved in be "resolved in prosecution, § 5(C); favor of the accused favor of the accused favor of the accused favor of the accused however, M.C.I. No. and he must be and he must be and he must be and he must be 2 states that element acquitted"; that acquitted"; that acquitted"; that acquitted"; that of wrongfulness of reasonable doubt as reasonable doubt as reasonable doubt as reasonable doubt as an offense is to be to the degree of to the degree of guilt to the degree of guilt to the degree of guilt CRS-72 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) inferred absent guilt must be must be resolved in must be resolved in must be resolved in evidence to the resolved in favor of favor of the lower favor of the lower favor of the lower contrary. M.C.I. the lower degree as degree as to which degree as to which degree as to which No. 2 § 4(B). to which there is no there is no there is no there is no reasonable doubt; reasonable doubt; reasonable doubt; reasonable doubt; and that the burden and that the burden and that the burden and that the burden of proof is upon the of proof is upon the of proof is upon the of proof is upon the United States. United States. United States. United States. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. § 949l § 949l. § 949l. § 949l. Two-thirds of the Two-thirds of the Two-thirds of the Two-thirds of the members must members must members must members must concur on a finding concur on a finding concur on a finding concur on a finding of guilty, except in of guilty, except in of guilty, except in of guilty, except in capital cases. capital cases. capital cases. capital cases, in Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. which case the § 949m. § 949m. § 949m. verdict must be unanimous. Proposed 10 U.S.C. § 949m. The military judge The procedural rules The procedural rules "The military judge is to exclude any are to provide for are to provide for shall exclude any CRS-73 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) evidence the the exclusion of any the exclusion of any evidence the probative value of evidence the evidence the probative value of which is probative value of probative value of which is substantially which is which is substantially outweighed by the substantially substantially outweighed by the danger of unfair outweighed by the outweighed by the danger of unfair prejudice, confusion danger of unfair danger of unfair prejudice, confusion of the issues, or prejudice, confusion prejudice, confusion of the issues, or misleading the of the issues, or of the issues, or misleading the members of the misleading the misleading the members of the commission, or by members of the members of the commission, or by considerations of commission, or by commission, or by considerations of undue delay, waste considerations of considerations of undue delay, waste of time, or needless undue delay, waste undue delay, waste of time, or needless presentation of of time, or needless of time, or needless presentation of cumulative presentation of presentation of cumulative evidence. Proposed cumulative cumulative evidence." 10 U.S.C. § 949a. evidence. Proposed evidence. Proposed Proposed 10 U.S.C. 10 U.S.C. § 949a. 10 U.S.C. § 949a. § 949a. Privilege No person subject to The accused is not "No person shall be "No person shall be "No person shall be "No person shall be Against Self- the UCMJ may required to testify, required to testify required to testify required to testify required to testify Incrimination compel any person and the commission against himself at a against himself at a against himself at a against himself at a to answer may draw no commission commission commission commission CRS-74 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) incriminating adverse inference proceeding." proceeding." proceeding." proceeding." questions. Art. 31(a) from, a refusal to Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. UCMJ, 10 U.S.C. § testify. § 948r. § 948r. § 948r. § 948r. 831(a). § 5(F). Adverse inferences Adverse inferences Adverse inferences Adverse inferences Defendant may not However, there is no drawn from a failure drawn from a failure drawn from a failure drawn from a failure be compelled to rule against the use to testify are not to testify are not to testify are not to testify are not give testimony that of coerced expressly expressly expressly expressly is immaterial or statements as prohibited; prohibited; however, prohibited; however, prohibited; however, potentially evidence. however, members members are to be members are to be members are to be degrading. There is no specific are to be instructed instructed that "the instructed that "the instructed that "the Art. 31(c), UCMJ, provision for that "the accused accused must be accused must be accused must be 10 U.S.C. § 831(c). immunity of must be presumed presumed to be presumed to be presumed to be witnesses to prevent to be innocent until innocent until his innocent until his innocent until his No adverse their testimony from his guilt is guilt is established guilt is established guilt is established inference is to be being used against established by legal by legal and by legal and by legal and drawn from a them in any and competent competent competent competent defendant's refusal subsequent legal evidence" Proposed evidence." Proposed evidence." Proposed evidence." to answer any proceeding; 10 U.S.C. § 949l. 10 U.S.C. § 949l. 10 U.S.C. § 949l. Proposed 10 U.S.C. questions or testify however, under 18 § 949l. at court-martial. U.S.C. §§ 6001 et Mil. R. Evid. 301(f). seq., a witness There does not There does not There does not There appears to be Witnesses may not required by a appear to be a appear to be a appear to be a no specific be compelled to military tribunal to provision for provision for provision for provision for CRS-75 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) give testimony that give incriminating immunity of immunity of immunity of immunity of may be testimony is witnesses. witnesses. witnesses. witnesses to prevent incriminating unless immune from their testimony from granted immunity prosecution in any being used against for that testimony criminal case, other them in any by a general court- than for perjury, subsequent legal martial convening giving false proceeding. authority, as statements, or authorized by the otherwise failing to Attorney General, if comply with the required. 18 U.S.C. order. 18 U.S.C. § 6002; R.C.M. 704. §§6002; 6004. Right to Hearsay rules apply Defense Counsel "Defense counsel "Defense counsel "Defense counsel "Defense counsel Examine or as in federal court. may cross-examine may cross-examine may cross-examine may cross-examine may cross-examine Have Mil. R. Evid. 801 et the prosecution's each witness for the each witness for the each witness for the each witness for the Examined seq. witnesses who prosecution who prosecution who prosecution who prosecution who Adverse In capital cases, appear before the testifies before the testifies before the testifies before the testifies before the Witnesses sworn depositions Commission. § 5(I). commission." commission." commission." commission." may not be used in Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. lieu of witness, However, the § 949c. § 949c. § 949c. § 949c. unless court-martial Commission may is treated as non- also permit The accused may be In the case of In the case of The accused may be CRS-76 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) capital or it is witnesses to testify excluded from classified classified excluded from introduced by the by telephone or hearing testimony information, the information, the hearing testimony defense. other means not that is classified if military judge may military judge may that is classified if Art. 49, UCMJ, 10 requiring the the military judge authorize the authorize the the military judge U.S.C. § 849. presence of the finds that "an government to government to finds that "an The government witness at trial, in unclassified delete specified delete specified unclassified may claim a which case cross- summary or portions of evidence portions of evidence summary or privilege not to examination may be redacted version of to be made available to be made available redacted version of disclose classified impossible. that evidence would to the accused, or to the accused, or that evidence would evidence to the § 6(D)(2). not be an adequate may allow an may allow an not be an adequate accused, and the substitute and ... unclassified unclassified substitute and ... military judge may In the case of closed alternative methods summary or summary or alternative methods authorize the proceedings or to obscure the statement setting statement setting to obscure the deletion of specified classified evidence, identity of the forth the facts the forth the facts the identity of the items of classified only the detailed witness are not evidence would tend evidence would tend witness are not information, defense counsel may adequate." to prove, to the to prove, to the adequate." substitute a portion be permitted to Proposed 10 U.S.C. extent practicable in extent practicable in Proposed 10 U.S.C. or summary, or participate. Hearsay § 949d(e)(3). accordance with the accordance with the § 949d(e)(3)(B)(4). statement admitting evidence is rules used at general rules used at general relevant facts that admissible as long courts-martial. courts-martial. the evidence would as the Commission Proposed 10 U.S.C. Proposed 10 U.S.C. tend to prove, unless determines it would § 949d(c)(3)(C). § 949d(c)(3)(C). the military judge have probative value determines that to a reasonable CRS-77 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) disclosure of person. § 6(D)(1). Hearsay evidence classified not admissible under information itself is The Commission the rules of evidence necessary to enable may consider applicable in trial by the accused to testimony from prior general courts- prepare for trial. trials as well as martial is admissible Mil. R. Evid. sworn and unsworn only "if the 505(g). written statements, proponent of the apparently without evidence makes regard to the known to the availability of the adverse party, declarant, in sufficiently in apparent advance to provide contradiction with the adverse party 10 U.S.C. § 849. with a fair § 6(D)(3). opportunity to meet the evidence, the proponent's intention to offer the evidence, and the particulars of the evidence (including information on the general CRS-78 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) circumstances under which the evidence was obtained)" unless the party opposing the admission of the evidence "clearly demonstrates that the evidence is unreliable or lacking in probative value." Proposed 10 U.S.C. § 949a(b)(3). If trial counsel seeks to claim a privilege to withhold classified information, the military judge may require that the defense be permitted to view an unclassified CRS-79 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) summary of the sources, methods, or activities by which the United States acquired the evidence, to the extent practicable and consistent with national security. It does not appear that the accused is permitted to present argument to the military judge in opposition to the government's claim of privilege. Proposed 10 U.S.C. § 949d(e)(2). Right to Defendants before The accused may Defense counsel is Defense counsel is Defense counsel is Defense counsel is Compulsory court-martial have obtain witnesses and to be afforded a to be afforded a to be afforded a to be afforded a the right to compel documents "to the reasonable reasonable reasonable reasonable CRS-80 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) Process to appearance of extent necessary and opportunity to opportunity to opportunity to opportunity to Obtain witnesses necessary reasonably available obtain witnesses obtain witnesses and obtain witnesses and obtain witnesses and Witnesses to their defense. as determined by the and other evidence, other evidence, other evidence, other evidence, R.C.M. 703. Presiding Officer." including evidence including evidence including evidence including evidence § 5(H). in the possession of in the possession of in the possession of in the possession of Process to compel the United States, as the United States, as the United States, as the United States, as witnesses in court- The Commission specified in specified in specified in specified in martial cases is to be has the power to regulations regulations regulations regulations similar to the summon witnesses prescribed by the prescribed by the prescribed by the prescribed by the process used in as requested by the Secretary of Secretary of Secretary of Secretary of federal courts. defense. § 6(A)(5). Defense. The Defense. The Defense. The Defense. The Art. 46, UCMJ, 10 military military commission military commission military commission U.S.C. § 846. The power to issue commission is is authorized to is authorized to is authorized to subpoenas is authorized to compel witnesses compel witnesses compel witnesses exercised by the compel witnesses under U.S. under U.S. under U.S. Chief Prosecutor; under U.S. jurisdiction to jurisdiction to jurisdiction to the Chief Defense jurisdiction to appear. Trial appear. The appear. The military Counsel has no such appear. The counsel is obligated military judge may judge may authorize authority. M.C.I. military judge may to disclose to the authorize discovery discovery in Nos. 3-4. authorize discovery defense all known in accordance with accordance with in accordance with evidence that tends rules prescribed by rules prescribed by rules prescribed by to exculpate or the Secretary of the Secretary of the Secretary of reduce the degree of Defense to redact Defense to redact Defense to redact guilt of the accused, classified classified CRS-81 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) classified treating classified information or to information or to information or to information in provide an provide an provide an accordance with unclassified unclassified unclassified rules that apply at summary or summary or summary or general court- statement describing statement describing statement describing martial. Proposed the evidence. The the evidence. The the evidence. The 10 U.S.C. § 949j. trial counsel is trial counsel is trial counsel is obligated to disclose obligated to disclose obligated to disclose exculpatory exculpatory exculpatory evidence of which evidence of which evidence of which he is aware to the he is aware to the he is aware to the defense, but such defense, but such defense, but such information, if information, if information, if classified, is classified, is classified, is available to the available to the available to the accused only in a accused only in a accused only in a redacted or redacted or redacted or summary form, and summary form, and summary form, and only if making the only if making the only if making the information information information available is possible available is possible available is possible without without without compromising compromising compromising intelligence sources, intelligence sources, CRS-82 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) intelligence sources, methods, or methods, or methods, or activities, or other activities, or other activities, or other national security national security national security interests. Proposed interests. Proposed interests. Proposed 10 U.S.C. § 949j. 10 U.S.C. § 949j. 10 U.S.C. § 949j. Right to Trial A qualified military The Presiding Military judges Military judges Military judges Military judges by Impartial judge is detailed to Officer is appointed must take an oath to must take an oath to must take an oath to must take an oath to Judge preside over the directly by the perform their duties perform their duties perform their duties perform their duties court-martial. The Appointing faithfully. Proposed faithfully. Proposed faithfully. Proposed faithfully. Proposed convening authority Authority, which 10 U.S.C. § 949g. 10 U.S.C. § 949g. 10 U.S.C. § 949g. 10 U.S.C. § 949g. may not prepare or decides all review any report interlocutory issues. The convening The convening The convening The convening concerning the There do not appear authority is authority is authority is authority is performance or to be any special prohibited from prohibited from prohibited from prohibited from effectiveness of the procedural preparing or preparing or preparing or preparing or military judge. safeguards to ensure reviewing any reviewing any report reviewing any report reviewing any report Art. 26, UCMJ, 10 impartiality, but report concerning concerning the concerning the concerning the U.S.C. § 826. challenges for cause the effectiveness, effectiveness, effectiveness, effectiveness, have been fitness, or efficiency fitness, or efficiency fitness, or efficiency fitness, or efficiency Article 37, UCMJ, permitted. of a military judge. of a military judge. of a military judge. of a military judge. prohibits unlawful § 4(A)(4). Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. influence of courts- § 948j(a). § 948j. § 948j. § 948j. CRS-83 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) martial through The presiding judge, A military judge A military judge admonishment, who decides issues may not be assigned A military judge A military judge may not be assigned censure, or of admissibility of to a case in which may not be assigned may not be assigned to a case in which reprimand of its evidence, does not he is the accuser, an to a case in which to a case in which he is the accuser, an members by the vote as part of the investigator, a he is the accuser, an he is the accuser, an investigator, a convening authority commission on the witness, or a investigator, a investigator, a witness, or a or commanding finding of guilt or counsel. witness, or a witness, or a counsel. The officer, or any innocence. § 948j(c). counsel. The counsel. The military judge may unlawful attempt by Article 37, UCMJ, The military judge military judge may military judge may not consult with the a person subject to provides that no may not consult not consult with the not consult with the members of the the UCMJ to coerce person subject to the with the members of members of the members of the commission except or influence the UCMJ "may attempt the commission commission except commission except in the presence of action of a court- to coerce or, by any except in the in the presence of in the presence of the accused, trial martial or convening unauthorized means, presence of the the accused, trial the accused, trial counsel, and defense authority. influence the action accused, trial counsel, and defense counsel, and defense counsel, nor may he Art. 37, UCMJ, 10 of a court-martial or counsel, and counsel, nor may he counsel, nor may he vote with the U.S.C. § 837. any other military defense counsel, nor vote with the vote with the members of the tribunal or any may he vote with members of the members of the commission. member thereof, in the members of the commission. commission. § 948j. reaching the commission. § 948j. § 948j. findings or sentence § 948j(d). in any case, or the No convening No convening action of any authority may No convening No convening authority may convening, censure, reprimand, authority may authority may censure, reprimand, CRS-84 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) approving, or or admonish the censure, reprimand, censure, reprimand, or admonish the reviewing authority military judge with or admonish the or admonish the military judge with with respect to his respect to the military judge with military judge with respect to the judicial acts." exercise of his respect to the respect to the exercise of his 10 U.S.C. § 837. functions in the exercise of his exercise of his functions in the conduct of military functions in the functions in the conduct of military M.C.I. No. 9 commission conduct of military conduct of military commission clarifies that Art. 37 proceedings. No commission commission proceedings. No applies with respect person may proceedings. No proceedings. No person may consider to members of the consider or evaluate person may consider person may consider or evaluate the review panel. MCI the performance of or evaluate the or evaluate the performance of duty No. 9 § 4(F). duty of any member performance of duty performance of duty of any member of a of a military of any member of a of any member of a military commission commission in military commission military commission in writing efficiency writing efficiency in writing efficiency in writing efficiency reports or any other reports or any other reports or any other reports or any other document used for document used for document used for document used for determining whether determining determining whether determining whether a commissioned whether a a commissioned a commissioned officer of the armed commissioned officer of the armed officer of the armed forces is qualified to officer of the armed forces is qualified to forces is qualified to be advanced in forces is qualified to be advanced in be advanced in grade, assigned or be advanced in grade, assigned or grade, assigned or transferred, or grade, assigned or transferred, or transferred, or retained on active CRS-85 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) transferred, or retained on active retained on active duty. Proposed 10 retained on active duty. Proposed 10 duty. Proposed 10 U.S.C. § 949b. duty. No person U.S.C. § 949b. U.S.C. § 949b. may attempt to The military judge coerce or use The military judge The military judge may be challenged unauthorized means may be challenged may be challenged for cause. Proposed to influence the for cause. Proposed for cause. Proposed 10 U.S.C. § 949f. action of a 10 U.S.C. § 949f. 10 U.S.C. § 949f. commission or convening, approving, or reviewing authority with respect to judicial acts Proposed 10 U.S.C. § 949b. The military judge may be challenged for cause. Proposed 10 U.S.C. § 949f. Right to Trial A military accused The commission Military Military Military Military By Impartial has no Sixth members are commission commission commission commission Jury Amendment right to appointed directly members must take members must take members must take members must take a trial by petit jury. by the Appointing an oath to perform an oath to perform an oath to perform an oath to perform CRS-86 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) Ex Parte Quirin, Authority. While the their duties their duties their duties their duties 317 U.S. 1, 39-40 Commission is faithfully. Proposed faithfully. Proposed faithfully. Proposed faithfully. Proposed (1942) (dicta). bound to proceed 10 U.S.C. § 949g. 10 U.S.C. § 949g. 10 U.S.C. § 949g. 10 U.S.C. § 949g. impartially, there do However, "Congress not appear to be any The accused may The accused may The accused may The accused may has provided for special procedural make one make one make one make one trial by members at safeguards designed peremptory peremptory peremptory peremptory a court-martial." to ensure their challenge, and may challenge, and may challenge, and may challenge, and may United States v. impartiality. challenge other challenge other challenge other challenge other Witham, 47 MJ 297, However, members for cause. members for cause. members for cause. members for cause. 301 (1997); Art. 25, defendants have Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. UCMJ, 10 U.S.C. § successfully § 949f. § 949f. § 949f. § 949f. 825. challenged members The Sixth for cause. § 6(B). No convening No convening No convening No convening Amendment authority may authority may authority may authority may requirement that the censure, reprimand, censure, reprimand, censure, reprimand, censure, reprimand, jury be impartial or admonish the or admonish the or admonish the or admonish the applies to court- commission or any commission or any commission or any commission or any martial members member with member with member with member with and covers not only respect to the respect to the respect to the respect to the the selection of findings or sentence findings or sentence findings or sentence findings or sentence individual jurors, or the exercise of or the exercise of or the exercise of or the exercise of but also their any other functions any other functions any other functions any other functions conduct during the in the conduct of the in the conduct of the in the conduct of the in the conduct of the CRS-87 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) trial proceedings proceedings. No proceedings. No proceedings. No proceedings. No and the subsequent person may attempt person may attempt person may attempt person may attempt deliberations. to coerce or, by any to coerce or, by any to coerce or, by any to coerce or, by any United States v. unauthorized unauthorized means, unauthorized means, unauthorized means, Lambert, 55 M.J. means, influence the influence the action influence the action influence the action 293 (2001). action of a of a commission or of a commission or of a commission or The absence of a commission or any any member thereof, any member thereof, any member thereof, right to trial by jury member thereof, in in reaching the in reaching the in reaching the precludes criminal reaching the findings or sentence findings or sentence findings or sentence trial of civilians by findings or sentence in any case. Military in any case. Military in any case. Military court-martial. in any case. Military commission duties commission duties commission duties Reid v. Covert, 354 commission duties may not be may not be may not be U.S. 1 (1957); may not be considered in the considered in the considered in the Kinsella v. United considered in the preparation of an preparation of an preparation of an States ex rel. preparation of an effectiveness, effectiveness, effectiveness, Singleton, 361 U.S. effectiveness, fitness, or efficiency fitness, or efficiency fitness, or efficiency 234 (1960). fitness, or efficiency report or any other report or any other report or any other report or any other report or document report or document report or document report or document used in whole or in used in whole or in used in whole or in used in whole or in part for the purposes part for the purposes part for the purposes part for the purposes related to related to related to related to promotion, promotion, promotion, promotion, assignment or assignment or assignment or assignment or retention on active retention on active retention on active CRS-88 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) retention on active duty. Proposed 10 duty. Proposed 10 duty. Proposed 10 duty. Proposed 10 U.S.C. § 949b. U.S.C. § 949b. U.S.C. § 949b. U.S.C. § 949b. Right to Those convicted by A review panel The accused may The accused may The accused may The accused may Appeal to court-martial have appointed by the submit matters for submit matters for submit matters for submit matters for Independent an automatic appeal Secretary of consideration by the consideration by the consideration by the consideration by the Reviewing to their respective Defense reviews the convening authority convening authority convening authority convening authority Authority service courts of record of the trial in with respect to the with respect to the with respect to the with respect to the appeal, depending a closed conference, authenticated authenticated authenticated authenticated on the severity of disregarding any findings or sentence findings or sentence findings or sentence findings or sentence the punishment. procedural variances of the military of the military of the military of the military Art. 66, UCMJ; 10 that would not commission. The commission. The commission. The commission. The U.S.C. § 866. materially affect the convening authority convening authority convening authority convening authority outcome of the trial, must review timely must review timely must review timely must review timely Decisions by service and recommends its submissions prior to submissions prior to submissions prior to submissions prior to appellate courts are disposition to the taking action. taking action. taking action. taking action. reviewable on a Secretary of Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. discretionary basis Defense. Although § 950b. § 950b. § 950b. § 950b. by the Court of the Defense Counsel Appeals for the has the duty of The accused may The accused may The accused may The accused may Armed Forces representing the appeal a final appeal a final appeal a final appeal a final (CAAF), a civilian interests of the decision of the decision of the decision of the decision of the court composed of accused during any military military commission military commission military commission five civilian judges review process, the commission with to the Court of with respect to with respect to CRS-89 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) appointed by the review panel need respect to issues of Appeals for the issues of law issues of law President. not consider written law (meaning only Armed Forces on (meaning only the (meaning only the Art. 67, UCMJ; 10 submissions from the provisions of the the basis of matters provisions of the provisions of the U.S.C. § 867. the defense, nor new chapter 47a of for which appeal is new chapter 47a of new chapter 47a of CAAF decisions are does there appear to title 10, U.S. Code, permitted under the title 10, U.S. Code, title 10, U.S. Code, subject to Supreme be an opportunity to related to military § 1005(e)(3) of the related to military related to military Court review by rebut the commissions) to the DTA (42 U.S.C. § commissions) to the commissions) to the writ of certiorari. submissions of the Court of Military 801 note), and may Court of Military Court of Military 28 U.S.C. § 1259. prosecution. If the Commission seek review by the Commission Commission The writ of habeas majority of the Review, a new body Supreme Court. Review, a new body Review, a new body corpus provides the review panel forms to be established by Proposed 10 U.S.C. to be established by to be established by primary means by a "definite and firm the Secretary of § 950f. the Secretary of the Secretary of which those conviction that a Defense, comprised Defense, comprised Defense, comprised sentenced by material error of law of appellate military of appellate military of appellate military military court, occurred," it may judges who meet the judges who meet the judges who meet the having exhausted return the case to the same qualifications same qualifications same qualifications military appeals, can Appointing as military judges or as military judges or as military judges or challenge a Authority for further comparable comparable comparable conviction or proceedings. qualifications for qualifications for qualifications for sentence in a § 6(H)(4). civilian judges. civilian judges. civilian judges. civilian court. The The review panel Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. scope of matters that recommendation § 950f. § 950f. § 950f. a court will address does not appear to is narrower than in be binding. The CRS-90 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) challenges of federal Secretary of Once these appeals Once these appeals Once these appeals or state convictions. Defense may serve are exhausted, the are exhausted, the are exhausted, the Burns v. Wilson, as Appointing accused may appeal accused may appeal accused may appeal 346 U.S. 137 Authority and as thethe final decision to the final decision to the final decision to (1953). final reviewing the United States the United States the United States authority, as Court of Appeals Court of Appeals for Court of Appeals for designated by the for the District of the District of the District of President. Columbia Circuit. Columbia Circuit. Columbia Circuit. Appellate court Appellate decisions Appellate decisions Although the M.O decisions may be may be reviewed by may be reviewed by specifies that the reviewed by the the Supreme Court the Supreme Court individual is not Supreme Court under writ of under writ of privileged to seek under writ of certiorari. Proposed certiorari. Proposed any remedy in any certiorari. Proposed 10 U.S.C. § 950g. 10 U.S.C. § 950g. U.S. court or state 10 U.S.C. § 950g. No action in habeas court, the court of corpus or claim No action in habeas No other cause of any foreign nation, under any cause of corpus or claim action, including or any international action related to the under any cause of petitions for habeas tribunal, M.O. § prosecution, trial, or action related to the corpus, would be 7(b), Congress judgment of a prosecution, trial, or permitted. Proposed established military judgment of a 10 U.S.C. § 950j. jurisdiction in the commission, military Court of Appeals for including challenges commission, the D.C. Circuit to to the lawfulness of including challenges CRS-91 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) hear challenges to military to the lawfulness of final decisions of commissions, is military military permissible in any commissions, is commissions. court. Proposed 10 permissible in any Detainee Treatment U.S.C. § 950i. court. Proposed 10 Act of 2005. U.S.C. § 950i. CRS-92 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) Protection The right to appeal a The accused is Military Military Military Military against conviction resulting permitted to make a commissions may commissions may commissions may commissions may Excessive in a death sentence statement during adjudge "any adjudge "any adjudge "any adjudge "any Penalties may not be waived. sentencing punishment not punishment not punishment not punishment not R.C.M. 1110. procedures. § 5(M). forbidden by forbidden by forbidden by forbidden by Death may only be [proposed chapter [proposed chapter [proposed chapter [proposed chapter adjudged for certain The death sentence 47a, title 10, U.S. 47a, title 10, U.S. 47a, title 10, U.S. 47a, title 10, U.S. crimes where the may be imposed Code, and the Code, and the Code, and the Code], including the defendant is found only on the UCMJ], including UCMJ], including UCMJ], including penalty of death...." guilty by unanimous unanimous vote of a the penalty of the penalty of the penalty of Proposed 10 U.S.C. vote of court-martial seven-member death...." Proposed death...." Proposed death...." Proposed § 948d. members present at panel. § 6(F). 10 U.S.C. § 948d. 10 U.S.C. § 948d. 10 U.S.C. § 948d. the time of the vote. Prior to The commission A vote two-thirds of A vote of two-thirds "Punishment by A vote of two-thirds arraignment, the may only impose a the members of the members flogging, or by of the members trial counsel must sentence that is present for the vote present for the vote branding, marking, present for the vote give the defense appropriate to the is required for is required for or tattooing on the is required for written notice of offense for which sentences of up to sentences of up to body, or any other sentences of up to aggravating factors there was a finding 10 years. Longer 10 years. Longer cruel or unusual 10 years. Longer the prosecution of guilty, including sentences require sentences require punishment, may sentences require intends to prove. death, the concurrence of the concurrence of not be adjudged by a the concurrence of R.C.M. 1004. imprisonment, fine three-fourths of the three-fourths of the military commission three-fourths of the A conviction of or restitution, or members present. members present. or inflicted upon members present. spying during time "other such lawful The death penalty The death penalty any person subject The death penalty CRS-93 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) of war under article punishment or must be approved must be approved to this chapter. The must be approved 106, UCMJ, carries condition of unanimously. unanimously. use of irons, single unanimously. a mandatory death punishment as the Where the death Where the death or double, except forWhere the death penalty. commission shall penalty is sought, a penalty is sought, a the purpose of safe penalty is sought, a 10 U.S.C. § 906. determine to be panel of 12 panel of 12 custody, is panel of 12 proper." § 6(G). members is required members is required prohibited." members is required (unless the (unless the Proposed 10 U.S.C. (unless the If the Secretary of convening authority convening authority § 949s. convening authority Defense has the certifies that 12 certifies that 12 certifies that 12 authority to conduct members are not members are not A vote of two- members are not the final review of a "reasonably "reasonably thirds of the "reasonably conviction and available" because available" because members present for available" because sentence, he may of physical of physical the vote is required of physical mitigate, commute, conditions or conditions or for sentences of up conditions or defer, or suspend, military exigencies), military exigencies), to 10 years. Longer military exigencies), but not increase, the with all members with all members sentences require with all members sentence. However, present for the vote present for the vote the concurrence of present for the vote he may disapprove agreeing on the agreeing on the three-fourths of the agreeing on the the findings and sentence. The death sentence. The death members present. sentence. The death return them for penalty must be penalty must be The death penalty penalty must be further action by the expressly authorized expressly authorized must be approved expressly authorized military for the offense, and for the offense, and unanimously. for the offense, and commission. the charges referred the charges referred Where the death the charges referred § 6(H). to the commission to the commission penalty is sought, a to the commission CRS-94 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) must have expressly must have expressly panel of 12 must have expressly sought the penalty sought the penalty members is required sought the penalty of death. Proposed of death.Proposed (unless the of death. Proposed 10 U.S.C. § 949n. 10 U.S.C. § 949n. convening authority 10 U.S.C. § 949n. certifies that 12 members are not "reasonably available" because of physical conditions or military exigencies), 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. Proposed 10 U.S.C. § 949n. CRS-95 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) An accused who is An accused who is An accused who is An accused who is sentenced to death sentenced to death sentenced to death sentenced to death may waive his may waive his may waive his may not waive his appeal, but may not appeal, but may not appeal, but may not right to appeal. withdraw an appeal. withdraw an appeal. withdraw an appeal. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. Proposed 10 U.S.C. § 950c. § 950c. § 950c. § 950c. The death sentence The death sentence The death sentence The death sentence may not be executed may not be executed may not be executed may not be executed until the until the until the until the commission commission commission commission proceedings have proceedings have proceedings have proceedings have been finally been finally been finally been finally adjudged lawful and adjudged lawful and adjudged lawful and adjudged lawful and the time for appeal the time for appeal the time for appeal the President has expired; or if has expired; or if the has expired; or if the approves the the CAAF reviews CAAF reviews the CAAF reviews the sentence. Proposed the sentence, the sentence, the time sentence, the time 10 U.S.C. § 950i. time for filing a writ for filing a writ has for filing a writ has has expired or the expired or the writ expired or the writ writ has been has been denied; has been denied; denied; and the and the President and the President President approves approves the approves the CRS-96 Military General Courts Commission Order H.R. 6054 S. 3901 S. 3930 S. 3886/S. 3861 Martial No. 1 (M.C.O.) the sentence. sentence. Proposed sentence. Proposed Proposed 10 U.S.C. 10 U.S.C. § 950i. 10 U.S.C. § 950i. § 950i. Source: Congressional Research Service ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31600