The Military Commissions Act of 2009: Overview and Legal Issues

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 the Supreme Court in Hamdan v. Rumsfeld invalidated the military commissions as improper under the Uniform Code of Military Justice UCMJ. 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 UCMJ and possibly U.S. international obligations. Military commissions proceedings were reinstated and resulted in three convictions. Upon taking office in 2009, President Obama temporarily halted military commissions to review their procedures as well as the detention program at Guant namo Bay in general, pledging to close the prison facilities there by January 2010, a deadline that passed unmet. The Secretary of Defense was also required to take steps to ensure that all proceedings before military commissions and the United States Court of Military Commission Review were halted, although some pretrial proceedings continued to take place. One case was moved to a federal district court. In May, 2009, the Obama Administration announced that it was considering restarting the military commission system with some changes to the procedural rules. Congress enacted the Military Commissions Act of 2009 MCA 2009 as part of the Department of Defense Authorization Act NDAA for FY2010, P.L. 111-84, to provide some reforms the Administration supported and to make other amendments to the Military Commissions Act, as described in this report. This report provides a background and analysis comparing military commissions as envisioned under the revised MCA to those established by the MCA 2006.