Background Briefing

Briefing on U.S. Military Commissions

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Updated November 2005

Lack of Independent Judicial Oversight

Improper Use of Military Courts

Military Commission Jurisdiction Over POWs

Restrictions on Effective Defense

Interlocutory Questions Reviewed by Appointing Authority

Use of Evidence Gathered Through Torture or Ill-Treatment

Secret Trials and Gag Order for Defense Counsel

"Command Influence" and Military Defense Counsel

Right to Counsel of Choice

Second-Class Justice for Non-Citizens

Despite the Bush administration’s oft-repeated assurances that the “global war on terror” will affirm and protect basic human rights, the rules for the proposed commissions fall far short of national as well as international fair trial standards.. The U.S. government has replaced the U.S. federal court and court-martial structures and procedures with a wholly new and deeply biased system that gives the Department of Defense control over the proceedings, the verdict, appellate review, and ultimately what the public can know about the trials. Commission trials will yield verdicts – possibly including death sentences – of questionable legitimacy, and will deliver a message worldwide that the fight against terrorism need not respect the rule of law.

Absent significant change in the structure and rules of the military commissions, the United States would be in violation of its obligations under international law to try anyone before them. The United States should instead take all the necessary steps to ensure that those tried before military commissions receive trials that are a credit to American justice, not a stain on its history.


On July 15, 2005, a U.S. federal appeals court in Hamdan v. Rumsfeld overturned a November 8, 2004 district court ruling that had resulted in the suspension of the U.S. military commissions at Guantanamo Bay. On November 7, the Supreme Court agreed to review the Hamdan decision.

The appellate court ruling opens the way for the resumption of the four cases currently before the commissions. The case against Australian David Hicks is scheduled to resume on November 18, 2005. To date President Bush has designated fifteen Guantanamo detainees as eligible for trial by military commission. Of those fifteen, four were formally charged in 2004 and referred for prosecution. On November 7, 2005, the Defense Department announced that the military commission Appointing Authority had approved charges against an additional five detainees at Guantanamo.  They are from Ethiopia, Algeria, Canada, and two from Saudi Arabia. 1

Human Rights Watch has raised serious due process concerns about the Guantanamo military commissions since they were first announced by President Bush in November 2001. Under the president’s directive, the U.S. Department of Defense has issued a series of orders and instructions governing most aspects of the commissions, from their basic organization to the crimes to be prosecuted to the rules governing defense counsel and appellate review.2 These rules incorporate certain due process safeguards into the commissions, including the presumption of innocence, proceedings ostensibly open to the public, and the presentation of evidence and cross examination of witnesses. Important as they are, these provisions cannot overcome the cumulative impact of other provisions that militate against fairness. They provide a patina of due process to proceedings that are otherwise deeply flawed.

Under the Defense Department rules, the military commissions will or are likely to:

  • Deprive defendants of independent judicial oversight by a civilian court.
  • Improperly subject to military trials persons apprehended far from any battle zone.
  • Try prisoners of war (POWs) in a manner that violates the 1949 Geneva Conventions.
  • Deprive defense counsel of the means to prepare an effective defense.
  • Prevent defendants from seeing all evidence introduced against them.
  • Impose no obligation on the government to disclose exculpatory information.
  • Place review of important interlocutory questions with the charging authority rather than an independent adjudicator.
  • Fail to guarantee that evidence obtained via torture or ill-treatment shall not be used.
  • Allow wide latitude to close proceedings and impose a “gag order” on defense counsel.
  • Deprive military defense counsel of normal protections afforded military lawyers from improper “command influence.”
  • Restrict the defendant’s right to choose legal counsel.
  • Provide lower due process standards for non-citizens than for U.S. citizens.

On August 31, 2005, the U.S. Department of Defense announced several changes to the military commissions that it claimed would make the commissions “smoother and more efficient.”  Under the rule changes, the commission’s presiding officer will act more like a judge, ruling on legal issues, while the other members of the panel will act more like a jury, determining issues of fact. 3  Commission hearings held in 2004—to which Human Rights Watch sent observers—had highlighted serious deficiencies in the U.S. military commission members’ understanding of the laws of war and basic principles of criminal justice.4

The rule changes also provide that classified evidence can be withheld from the accused unless doing so would deny him a “full and fair trial.” While Human Rights Watch welcomed the Pentagon’s recognition that access to evidence is necessary for a fair trial, the Pentagon will still remain the arbiter of that evidence. This change may mean little so long as there is no judicial review of the proceedings by a civilian court. U.S. courts martial, unlike the commissions, are reviewed by a civilian appeals court. Revelations of torture and other mistreatment by U.S. personnel at Guantánamo Bay and other detention facilities outside the United States heightens concerns over the use of evidence withheld from the accused. Human Rights Watch believes the rule changes were aimed to deflect criticism of the commissions without addressing the commissions’ most fundamental problems. 

It is unclear how many cases will proceed to full trials before the commissions. The lopsided rules plus the threat of capital punishment may compel many of those accused to accept plea agreements, even if harsh. Others may be convicted on the basis of evidence withheld from the defendant.  This will permit prosecutors to declare victory, but the broader public will be deprived of an important opportunity to assess guilt or innocence, and fill an important historical record.

[1] Human Rights Watch has long be concerned about the treatment at Guantanamo of the Canadian, Omar Ahmed Khadr, who was fifteen-years old at the time of his arrest but has not been treated as a child by U.S. authorities as is required under international law. 

[2] Since President Bush issued Military Order of November 13, 2001 authorizing military commissions, the Department of Defense has released several instructions setting out the applicable law and procedure: Military Commission Order No. 1 (MCO No. 1), issued March 21, 2002; a draft set of crimes and elements released on February 28, 2003 for public comment; a set of nine Military Commission Instructions (MCIs) released on April 30, 2003 and subsequently, several of which were later revised; and Military Commission Order No. 3 (MCO No. 3), issued February 5, 2004.

[3] Military Commission Order (MCO), No. 1 (revised August 31, 2005).

[4] Human Right Watch, “U.S.: Guantanamo Tribunal Lacks Basic Knowledge of Law,” press release, November 5, 2004.