Military commissions are a form of military tribunal convened to try individuals for unlawful conduct associated with war. Though sometimes controversial, they are rooted in U.S. law and in the international laws of war. Foreshadowed by military tribunals convened during the American Revolution, the term “military commission” first became common in the U.S. during the Mexican-American War of the mid 19th century. Subsequent practice, legislation and U.S. Supreme Court precedents have shaped them. Today, a Convening Authority appointed by the U.S. Secretary of Defense convenes military commissions under the Military Commissions Act of 2009, passed by the U.S. Congress and signed by President Barack Obama on October 27, 2009. Here is a snapshot of military commissions from the Revolutionary War to the present.
General George Washington convenes a Board of General Officers to investigate former American Soldier Thomas Shanks on suspicion of spying for the British. The Board concludes that Shanks was a spy. He is executed by order of General Washington.
American soldiers capture a British Officer identified as Major John Andre behind American lines carrying intelligence for the enemy. General George Washington convenes a Board of General Officers to investigate. The Board finds Andre guilty, based in part on his confession, and recommends the death penalty. Major Andre is executed under the orders of General Washington at Tappan, New York, Oct. 2, 1780.
General Winfield Scott serves as the U.S. commander in Tampico, Mexico. To prevent misconduct by his own forces as well as by Mexican guerillas, General Scott devises a system of military tribunals for prosecuting individuals for conduct not triable by courts-martial under the then-existing Articles of War. He issues General Order No. 20, declaring martial law in Tampico and prescribing two types of military tribunal. The first, which General Scott calls “military commissions,” tries U.S. soldiers, as well as Mexicans and civilians, for conduct not triable by courts-martial, including “assassination, murder, poisoning, rape, or the attempt to commit either, malicious stabbing or maiming, malicious assault and battery, robbery, theft, the wanton desecration of churches, cemeteries, or other religious edifices and fixtures, the interruption of religious ceremonies, and the destruction, except by order of a superior officer, of public or private property.” This marks the first consistent use of the title “military commission.” The second tribunal tries individuals for violations of the laws of war, such as acts of guerrilla warfare, that could not be tried by courts-martial under the Articles of War.
U.S. Civil War
General Henry Halleck, commander of the Union Army in Missouri during the U.S. Civil War, convenes military commissions to try civilians for offenses not covered by the Articles of War, including acts of guerilla warfare that threatened civilian lives and infrastructure.
President Abraham Lincoln issues General Order No. 100, Instructions for the Government of the Armies of the United States in the Field, known as the “Lieber Code,” recognizing military commissions as the appropriate forum for trying “cases which do not come within the ‘Rules and Articles of War,’ or the jurisdiction conferred by statute on courts-martial.”
The United States uses military commissions to try thousands of individuals for violations of the laws of war during the U.S. Civil War, particularly in border states, where commanders faced Confederate guerilla fighters.
The Union Army in Indiana – a loyal state – tries civilian Lambdin P. Milligan, a citizen of Indiana, by military commission for aiding enemy forces. The commission finds him guilty and he is ordered executed. Milligan challenges the jurisdiction of the commission through a petition for a writ of habeas corpus, which makes its way to the U.S. Supreme Court. The Court grants Milligan’s petition, holding that, under the circumstances of the case, the military commission did not have jurisdiction to try him. Ex parte Milligan, 71 U.S. 2 (4 Wall.) (1866).
President Abraham Lincoln is assassinated just before the conclusion of the U.S. Civil War. Newly sworn-in, President Andrew Johnson contemplates a military trial for the eight individuals alleged to have conspired in the assassination plot. Recognizing the potential for controversy over the use of a military trial, he first seeks the opinion of U.S. Attorney General James Speed. Attorney General Speed concludes that the laws of war form part of U.S. law. The laws of war permit trial by military commission of certain individuals during time of war for offenses against the law of war. Relying on this opinion, President Johnson convenes a military commission to try the eight alleged conspirators. The commission convicts each of the eight on at least one charge. Their sentences vary.
The United States convenes a military commission to try Confederate Army Captain Henry Wirz, commandant of the Andersonville prisoner-of-war camp. During the war, 13,000 Andersonville prisoners died from exposure, malnutrition and disease. The commission convicts Captain Wirz on charges of conspiracy and murder in violation of the laws of war, and sentences him to death. He is executed in November 1865.
World War I - World War II
The U.S. Congress amends the Articles of War governing the conduct of U.S. military forces. Article 15 of the new Articles preserves the existing jurisdiction of military commissions to try individuals for violations of the laws of war. Article 38 authorizes the President to establish rules for courts-martial and military commissions consistent with the Articles of War.
Congress again amends the Articles of War. The article preserving military commission jurisdiction remains unchanged. Article 38 is amended to require that the rules for military commissions, “in so far as [the President deems] practicable” apply the rules of evidence used in federal criminal trials.
During World War II, U.S. law enforcement agents capture eight German saboteurs who entered the United States surreptitiously in June 1942. President Franklin D. Roosevelt convenes a military commission in Washington, D.C., to try them. The commission convicts all eight conspirators; six of the eight receive a death-sentence. The eight men file a petition for a writ of habeas corpus, challenging the President’s authority to try them by military commission rather than in civilian court. The case reaches the U.S. Supreme Court, which ultimately upholds the government’s authority to try the men by military commission.
The United States uses military tribunals, including military commissions, in Europe during and after World War II, including the International Military Tribunal at Nuremberg, Germany, where the allies prosecute high-level Nazi officials for war crimes and other offenses. The U.S. also uses military tribunals to prosecute lower level officials for violations of the laws of war, and for prosecuting traditional domestic crimes that could not be tried by the German courts.
In the Pacific Theater, the Commanding General of U.S. Army Forces, Western Pacific, convenes a military commission to try Japanese General Tomoyuki Yamashita for violations of the laws of war. The U.S. Supreme Court upholds the use of the commission in In re Yamashita, 327 U.S. 1 (1946), holding that the President and other military commanders possess the authority under the laws of war, as codified in Article of War 15, to try enemy combatants by military commission for violations of the laws of war.
The U.S. and its allies also establish The International Military Tribunal for the Far East in Tokyo, Japan, which tries Japanese leaders for war crimes and other offenses.
The U.S. Congress replaces the Articles of War with the Uniform Code of Military Justice (UCMJ). Article of War 15, authorizing the use of military commissions, becomes UCMJ Article 21. Article of War 38, authorizing the President to establish rules for military commissions, becomes UCMJ Article 36.
Article 21 of the 1950 UCMJ states: “The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.” Article 36 of the 1950 UCMJ provides that the President, insofar as is practicable, may establish rules of procedure and evidence for military tribunals that apply the principles used in the trial of criminal cases in the U.S., as long as they are not inconsistent with other sections of the UCMJ. It also requires that, unless impracticable, the rules for military commissions be the same as the rules for courts-martial used to try members of the U.S. armed forces.
The terrorist attacks on the United States on September 11, 2001, prompt the U.S. to deploy its military, along with intelligence and law enforcement agents, to combat enemy forces overseas. President George W. Bush issues a Military Order directing the Secretary of Defense to establish military commissions to try certain individuals.
The President’s Military Order authorizes trial by military tribunal for non-U.S. citizens who are or were “members of the organization known as al Qaida; engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the U.S., its citizens, national security, foreign policy, or economy;” or, people who have knowingly harbored such individuals.
The Order provides basic guidelines for conducting military commissions. In it, the President finds it impractical to apply “the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts” to these commissions. The Order contains no determination that it would be impractical to use the rules and procedures used in courts-martial. It directs the Secretary of Defense to establish rules of evidence and procedure, which he does through a series of instructions, issued mainly between March 2002 and January 2004.
The rules and procedures differ substantially from those used in courts-martial to try members of the U.S. armed forces. They include the right to be tried by a panel of at least three military officers before a presiding officer, the right to a copy of the charges in English and in a language the accused understands, the presumption of innocence and other rights commonly afforded in courts-martial and civilian courts. However, they include many more controversial provisions, such as the potential use of evidence against an accused which he has never seen, the potential admission of testimonial hearsay, unsworn testimony and evidence obtained through coercion, and limited rights to appellate review.
July 2, 1964
February: Military commission prosecutors develop the first set of charges against persons subject to the President’s Order. These include charges against Salim Hamdan. Hamdan immediately challenges the commission’s jurisdiction by filing a petition for a writ of habeas corpus in the Federal District Court in Washington, D.C. In his petition, he challenges the sufficiency of the rules and procedures in the President’s Military Order of November 2001 and the subsequent instructions. The District Court grants Hamdan’s petition, halting all commission proceedings. The government appeals the ruling. The case reaches the U.S. Supreme Court nearly two years later.
June: The U.S. Supreme Court rules in Hamdan’s favor and invalidates the military commissions established under the President’s Military Order of November 2001. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The Court holds that Article 21 of the UCMJ authorizes the President to convene military commissions, consistent with the historical authority of commanders to convene military commissions, where justified under the U.S. Constitution and the laws of war. But, that authority is limited by Article 36 of the UCMJ and by the laws of war.
First, Article 36 of the UCMJ requires that the rules and procedures for military commissions be the same as those used in courts-martial unless the President determines that uniformity is impracticable. The rules and procedures for Hamdan’s military commission differ substantially from the courts-martial rules, but the President has not stated that the courts-martial rules would be impracticable. Also, nothing in the record of the case justifies the differences between the military commission’s procedures and those used in courts-martial. Hamdan’s military commission therefore violates Article 36.
Second, the Court holds that Hamdan’s military commission violates the laws of war – specifically, Common Article 3 of the Geneva Conventions. Common Article 3 prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The “regular” military courts in the U.S. are courts-martial. Therefore, a military commission may be “regularly constituted …only if some practical need explains deviations from court-martial practice.” As the rules for Hamdan’s commission deviate substantially from those used in courts-martial and the government has identified no practical need for any deviations, Hamdan’s commission is not “regularly constituted.” The commissions established under the Presidents Military Order therefore violate the laws of war as set out in the Geneva Conventions.
The Court ultimately holds that the military commission convened to try Hamdan under the President’s Military Order does not have the power to try him. However, the Court leaves open the possibility that the U.S. Congress may authorize military commissions with rules and procedures that differ from those used in courts-martial. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
October: In response to the Hamdan ruling, Congress enacts the Military Commissions Act (MCA) of 2006. The 2006 MCA authorizes the trial by military commission of alien unlawful enemy combatants engaged in hostilities against the U.S. for violations of the law of war and other offenses triable by military commission.
The statute provides a more comprehensive structure for military commissions than did the Presidents Military Order of November 2001. It guarantees the accused certain rights, such as the rights to see all evidence admitted against him, to be present at all proceedings unless removed after a warning to preserve safety of individuals or for being too disruptive, to trial before a qualified military judge and a panel of members (like a jury), to obtain evidence and witnesses in his or her defense, and to robust appellate review.
It also contains controversial provisions, including a limit on the right of detainees to seek a writ of habeas corpus, limited rights to counsel, placing the burden for the use in evidence of hearsay on the opponent, and not prohibiting the use in evidence of statements obtained by coercion. Military Commissions Act (MCA) of 2006.
January: The Secretary of Defense issues the 2007 Manual for Military Commissions, implementing the MCA of 2006.
April: David Hicks pleads guilty before a military commission. He is convicted of providing material support for terrorism and sentenced to 7 years’ confinement. Pursuant to a plea agreement, his sentence is reduced to 9 months; he is later transferred to his native Australia to serve out his sentence.
Salim Hamdan is tried by military commission. He is convicted and sentenced to 66 months of confinement for providing material support for terrorism; he is acquitted of a conspiracy charge. He is later transferred to his native Yemen.
Ali Hamza Ahmad Suliman al Bahlul is tried by military commission; he is convicted of solicitation, conspiracy and providing material support for terrorism and sentenced to life imprisonment.
January: President Barack Obama orders the Secretary of Defense to seek a stay in all military commission proceedings to allow time for a comprehensive review of commissions and detention operations. All military commissions are halted until November 2009.
May: The Secretary of Defense issues changes to the Manual for Military Commissions, providing additional rights to counsel, amending the hearsay provisions and eliminating the use of statements obtained through cruel, inhuman or degrading treatment.
October: the U.S. Congress passes the Military Commissions Act of 2009 (2009 MCA), which remains in effect today. The 2009 MCA expands the rights of an accused to align more closely with the rights afforded to an accused in courts-martial and federal criminal cases. It enhances an accused’s rights to counsel, including the right to request a specific counsel from the defense pool and, in capital cases, to have counsel with expertise in capital cases. The 2009 MCA also prohibits the use in evidence of statements that were obtained by torture or cruel, inhuman, and degrading treatment. It prohibits the use of statements of the accused unless the military judge finds the statement reliable, probative and given either (1) “incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement” or (2) voluntarily. The Act also places the burden for the use of hearsay evidence on the party intending to use it.
November: The U.S. Attorney General announces forum determinations, including 5 cases that may be tried by military commission.
February: The cases of Hamdan and al Bahlul are argued on appeal before the U.S. Court of Military Commission Review.
April: The Secretary of Defense approves the 2010 Manual for Military Commissions, which implements the 2009 MCA.
July-August: Ibrahim Ahmed Mahmoud al Qosi pleads guilty to providing material support for terrorism and conspiracy and is sentenced to 14 years’ confinement. The Convening Authority reduces his sentence to 2 years.
October: Omar Khadr pleads guilty to murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying and is sentenced to 40 years’ confinement. Pursuant to a plea agreement, his sentence is reduced to 8 years.
February: Noor Uthman Mohammed pleads guilty to conspiracy and providing material support for terrorism and is sentenced to 14 years confinement. Pursuant to a plea agreement, his sentence will be reduced to 34 months.
June: The United States Court of Military Commission Review affirms the findings and sentence in United States v. Hamdan, CMCR 09-002, June 24, 2001.
September: The United States Court of Military Commission Review affirms the findings and sentence in United States v. Al Bahlul, CMCR 09-001, September 9, 2011.
November: The Department of Defense issues a revised Regulation for Trials by Military Commission, including guidance for conducting military commissions consistent with the 2010 Manual for Military Commissions.
Abd al Rahim al Nashiri is arraigned on charges alleging an attempted attack on the USS The Sullivans, an attack on the USS Cole, and an attack on the MV Limburg. He is charged with perfidy, murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel.
February: Majid Khan pleads guilty to charges of conspiracy, murder in violation of the law of war, attempted murder in violation of the law of war, providing material support for terrorism, and spying.
May: Salim Hamdan’s appeal of his conviction, Hamdan v. United States, is argued before the U.S. Court of Appeals for the D.C. Circuit.
May: Khalid Shaikh Mohammad, Walid Muhammad Mubarak bin ‘Attash, Ramzi bin al Shibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi are arraigned jointly. They are charged with conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft, and terrorism in connection with their alleged roles in the planning and execution of the attacks of September 11, 2001, in New York, Washington D.C., and Shanksville, Pennsylvania, resulting in the killing of 2,976 people.
October: In Hamdan v. United States (Hamdan II), the U.S. Court of Appeals for the D.C. Circuit reverses the decision of the United States Court of Military Commission Review and orders that the conviction for material support for terrorism be vacated. The Court determined that the Military Commissions Act did not intend to retroactively punish new crimes, and that material support for terrorism was not a pre-existing war crime under international law. The Court concluded that Mr. Hamdan could not be convicted of providing material support for terrorism based on conduct occurring before the effective date of the Military Commissions Act.
January: The U.S. Court of Appeals for the D.C. Circuit reverses the decision of the United States Court of Military Commission Review in United States v. Al Bahlul, and orders that the convictions for material support for terrorism, conspiracy, and solicitation be vacated. The Court relied on Hamdan II in finding that material support for terrorism, conspiracy, and solicitation were not pre-existing war crimes under international law at the time of the charged conduct.
March: The government files a petition with the U.S. Court of Appeals for the D.C. Circuit for en banc reconsideration of the Court’s previous ruling in Al Bahlul v. United States, which vacated Mr. al Bahlul’s convictions.
March: The U.S. Court of Military Commission Review denies the petitions for a writ of mandamus filed by the American Civil Liberties Union Foundation’s (ACLU) and various media organizations objecting to the military commission protective order in United States v. Khalid Shaikh Mohammad, et al on the grounds that the order violates the public’s First Amendment right of access to criminal proceedings, because petitioners failed to allege they were improperly denied access to information.
April: The U.S. Court of Appeals for the D.C. Circuit grants the government’s petition for en banc reconsideration in Al Bahlul v. United States, and sets aside its earlier ruling.
September: The U.S. Court of Appeals for the D.C. Circuit hears oral argument en banc on the government’s petition for reconsideration in Al Bahlul v. United States.