Background Briefing

Military Commissions

1.  What are military commissions, and what did Congress authorize in the MCA?

Military commissions are criminal courts run by the U.S. armed forces. Traditionally, military commissions have been used to dispense battlefield justice – to try captured combatants for violations of the laws of war. They have also been used to replace or substitute civilian courts during periods of martial law or temporary military rule over enemy territory. It has been a longstanding U.S. practice that military commissions function as closely as possible to courts-martial.

The Military Commissions Act of 2006 legislates a new system of military commissions – giving the government authorization to try certain non-citizens before a military tribunal.

2.  How do the military commissions authorized by Congress differ from those that were struck down by the Supreme Court in Hamdan v. Rumsfeld?

The new commissions differ from the old commissions in two important respects:  the new commissions’ rules provide that defendants cannot be convicted based on evidence that they cannot see or rebut, and that defendants can appeal all convictions to a civilian appellate court. (Under the Detainee Treatment Act, passed in December 2005, defendants could only appeal convictions that resulted in a sentence of death or more than 10 years imprisonment.)

Nonetheless, the MCA contains some of the same troubling provisions included in the old commissions’ rules. The relaxed rules on hearsay and evidence obtained through coercion mean that defendants could be convicted based on second-hand summaries of statements obtained through coercive interrogations – without any opportunity for the defendant to confront his accusers. In addition, beyond the procedures and rules of evidence that it explicitly mandates, the new legislation allows the secretary of defense to establish further rules and procedures at odds from their courts-martial equivalent if the Secretary of Defense considers reliance on courts-martial rules and procedures to be “impracticable.”

The Bush administration will likely publish detailed rules for these new military commissions by the end of this year. The administration should take this opportunity to improve the fairness of the commissions – and thus to limit the degree to which they are subject to court challenge and public censure.

3.  Who can be tried by a military commission?

Any non-U.S. citizen – even a green card holder who has lived in the United States for decades – who is determined to be an “unlawful enemy combatant” can be tried by a military commission. (See section on enemy combatant definition).

The Bush administration has indicated that it has no intention of trying the vast majority of detainees held at Guantanamo Bay. Indeed, it is expected that only a few dozen Guantanamo detainees will ever be charged before a military commission, leaving the majority of detainees at Guantanamo in prolonged detention without charge, stripped of their habeas rights, and without ever being confronted with the evidence against them. 

4.  What crimes can by tried by military commissions?

Under the MCA, military commissions can try individuals for traditional war crimes and an array of terrorism-related and other crimes that have been always handled by criminal courts. Human Rights Watch is concerned that terrorism-related prosecutions of non-citizens will be shifted from federal courts to military commissions, where lax rules and procedures could deprive defendants of basic due process and fair trial rights. The law also allows for the prosecution of offenses during armed conflict, such as conspiracy, that are not considered war crimes.

5.  What penalties may military commissions impose?

Military commissions can impose the death penalty if the offense resulted in the death of another, or any period of imprisonment, including life imprisonment.  

6.  What commission rules in the MCA are of primary concern?

Definition of Unlawful Enemy Combatant:  [See below]

Use of Evidence Obtained Through Cruel, Inhuman, or Degrading Treatment:  While barring evidence obtained through torture, the rules permit the use of testimony obtained through abusive interrogation techniques that were used prior to the passage of the Detainee Treatment Act in December 2005 if they are found to be “reliable” – an oxymoron – and if their admission is found to be in “the interests of justice.” Presumably, most judges will find such statements inherently unreliable, but the very fact that they could be admitted raises significant concerns.

Lax Rules on Hearsay: The rules allow for the use of all hearsay evidence so long as it is deemed “reliable” and “probative.” But the burden is placed on the defendant to prove that the evidence is unreliable, a burden that it will be almost impossible for a defendant with limited discovery rights to meet. As a result, defendants could be convicted based on second- and third-hand summaries of key witness statements, without any chance to confront their accusers or challenge the accuracy of their statements in any meaningful way.

Limited Discovery Rights: The rules allow the prosecution to withhold classified sources and methods of interrogations from both the defendant andhis counsel. As a result, it will be extremely difficult for defendants to establish that evidence was obtained through torture or other coercive interrogation methods. Unless military commission judges are extremely vigilant, the prohibition on evidence obtained through torture could be become virtually meaningless. 

Right to Exculpatory Evidence: Although defendants have a general right to the disclosure of any exculpatory evidence (evidence tending to show that they are not responsible for the crime of which they are accused), they are not allowed to see any classified evidence, even if it is exculpatory. Rather, they will be shown an “adequate substitute.” If the source of the exculpatory evidence is classified – and not revealed as part of the “adequate substitute” – the defendant could be denied access to important evidence that would establish his innocence.

Death Penalty: The rules allow the death penalty for any crime that resulted in the death of another. Human Rights Watch opposes the death penalty as an inherently cruel and inhuman form of punishment that violates basic human rights.