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Comparison of Rules and Procedures in Tribunals that Try Individuals for Alleged War Crimes

Military commissions, a form of military tribunal, were born of military necessity. They have taken many forms since their first use in the United States during the Revolutionary War. The Military Commissions Act of 2009 authorizes trials by military commission in accordance with basic principles common to other courts and tribunals that try individuals for violations of the laws of war and other offenses.

The chart below compares rules and procedures employed under the Military Commissions Act of 2009 with those used in U.S. military courts-martial and U.S. federal courts, also known as Article III courts.

Basic Procedural Protections

Rule or Procedure Military Commissions Courts-Martial Article III Court
Accused is presumed innocent until proven guilty Yes Yes Yes
Prosecution bears the burden of proof Yes Yes Yes
Guilt must be proved beyond a reasonable doubt Yes Yes Yes
Trial must take place without undue delay Yes Yes Yes
Defense counsel at no cost, regardless of ability to pay Yes Yes No
Defense counsel at no cost for indigent accused Yes Yes Yes
May hire counsel at no cost to the government Yes. Subject to certain limitations. Yes Yes
Attorney-client privilege is honored Yes Yes Yes
Accused entitled to be present at trial Yes. Unless removed for persisting in disruptive or dangerous conduct. Yes. Unless removed for persisting in disruptive or dangerous conduct. Yes. Unless removed for persisting in disruptive or dangerous conduct.
Right to cross-examine witnesses Yes Yes Yes
Freedom from double jeopardy Yes Yes Yes
Right to the assistance of an interpreter at no cost to the accused Yes Yes Yes
Protection against compulsory self-incrimination Yes Yes Yes

Explanation

In military commissions and courts-martial, an accused is entitled to be represented by at least one military defense counsel at no cost to him or her. He or she may also hire a civilian attorney.

An accused in a military commission or in Article III Court where the death penalty is an authorized punishment, unlike an accused in a court-martial, is entitled to an additional lawyer at no cost to him or her who is learned in the applicable law relating to capital cases.

Sources

  • MCA 2009, 10 U.S.C. §§ 949a, 949d
  • Rule for Courts-Martial 804
  • Federal Rule of Criminal Procedure 43