The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice
Abstract:
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 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 that one of the defendants could not be tried under the rules established by the Department of Defense DOD. The D.C. Circuit Court of Appeals reversed that decision in Rumsfeld v. Hamdan, but the Supreme Court granted review and reversed the decision of the Court of Appeals. To permit military commissions to go forward, Congress approved the Military Commissions Act of 2006 MCA, conferring authority to promulgate rules that depart from the strictures of the Uniform Code of Military Justice UCMJ and possibly U.S. international obligations. The Department of Defense published regulations to govern military commissions 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 charges based on lack of jurisdiction and ordering the military judge to determine whether the accused is an unlawful enemy combatant subject to the military commissions jurisdiction. The CMCR rejected the government s argument that the determination by a Combatant Status Review Tribunal CSRT that a detainee is an enemy combatant was a sufficient basis for jurisdiction, but also rejected the military judge s finding that the military commission was not empowered to make the appropriate determination. This report provides a background and analysis comparing military commissions as envisioned under the MCA to the rules that had been established by the Department of Defense DOD for military commissions and to general military courts-martial conducted under the UCMJ.