The Military Commissions Act of 2009 (MCA 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 under the Bush Administration. Upon taking office in 2009, President Obama temporarily halted military commissions to review their procedures as well as the detention program at Guantanamo Bay in general, pledging to close the prison facilities there by January 2010, a deadline that passed unmet. 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. The plan to transfer five high value detainees to New York for trial in federal court, announced in November 2009, was halted due to resistance from Congress and some New York officials. Military commissions resumed under the new statute, resulting in an additional five convictions, although two of the previous convictions have been reversed on appeal.