The Military Commissions Act of 2006:Analysis of Procedural Rules and Comparisonwith Previous DOD Rules and the Uniform Codeof Military Justice
On November 13, 2001, President Bush issued a Military Order (M.O.)pertaining to the detention, treatment, and trial of certain non-citizens in the waragainst terrorism. Military commissions pursuant to the M.O. began in November2004 against four persons declared eligible for trial, but proceedings were suspendedafter a federal district court found that one of the defendants could not be tried underthe rules established by the Department of Defense (DOD). The D.C. Circuit Courtof Appeals reversed that decision in
Rumsfeld v. Hamdan
, but the Supreme Courtgranted review and reversed the decision of the Court of Appeals. To permit militarycommissions to go forward, Congress approved the Military Commissions Act of 2006 (MCA), conferring authority to promulgate rules that depart from the stricturesof the Uniform Code of Military Justice (UCMJ) and possibly U.S. internationalobligations. The Department of Defense published regulations to govern militarycommissions pursuant to the MCA.The Court of Military Commissions Review (CMCR), created by the MCA,issued its first decision on September 24, 2007, reversing a dismissal of chargesbased on lack of jurisdiction and ordering the military judge to determine whether theaccused is an “unlawful enemy combatant” subject to the military commission’s jurisdiction. The CMCR rejected the government’s argument that the determinationby a Combatant Status Review Tribunal (CSRT) that a detainee is an “enemycombatant” was a sufficient basis for jurisdiction, but also rejected the military judge’s finding that the military commission was not empowered to make theappropriate determination.This report provides a background and analysis comparing military commissionsas envisioned under the MCA to the rules that had been established by theDepartment of Defense (DOD) for military commissions and to general militarycourts-martial conducted under the UCMJ. After reviewing the history of theimplementation of military commissions in the “global war on terrorism,” the reportprovides an overview of the procedural safeguards provided in the MCA. The reportidentifies pending legislation, including H.R. 267, H.R. 1585, H.R. 2543, H.R. 2826,S. 1547, S. 1548, H.R. 1416, S. 1876, S. 185, S. 576, S.447, H.R. 1415 and H.R.2710. Finally, the report provides two tables comparing the MCA with regulationsthat had been issued by the Department of Defense pursuant to the President’sMilitary Order with standard procedures for general courts-martial under the Manualfor Courts-Martial. The first table describes the composition and powers of themilitary tribunals, as well as their jurisdiction. The second chart, which comparesprocedural safeguards required by the MCA with those that had been incorporatedin the DOD regulations and the established procedures in courts-martial, follows thesame order and format used in CRS Report RL31262,
Selected ProceduralSafeguards in Federal, Military, and International Courts
, to facilitate comparisonwith safeguards provided in federal court and international criminal tribunals.