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U.S. Court of Military Commissions Review (USCMCR) History

After the terrorist attacks on the United States on September 11, 2001, Congress adopted a joint resolution authorizing the President to use all necessary and appropriate force against the nations, organizations or persons that planned, authorized, committed or aided the terrorist attacks. On November 13, 2001, the President issued an order governing the detention, treatment and trial of certain non-citizens in the war against terrorism. The order provided for trial by military commission of any noncitizen for whom there was “reason to believe” that the person was a member of al Qaeda or had engaged or participated in terrorist activities aimed at or harmful to the United States.
The Secretary of Defense published Military Commission Order (MCO) No. 1 on March 21, 2002, and revised it on August 31, 2005, to implement the President’s order. MCO No. 1 provided for a Review Panel, appointed by the Secretary of Defense and consisting of three military officers, who could be civilians commissioned pursuant to Title 10, Section 603 of the United States Code. The Review Panel would review each conviction and send the case to the Secretary of Defense with a recommendation for disposition or return the case to the Appointing Authority if it found that a material error of law had occurred.
On September 21, 2004, the Secretary of Defense appointed four civilians with a view toward commissioning them as temporary major generals in the U.S. Army when ordered to active duty as members of the Review Panel. He appointed former Attorney General of the United States (Carter Administration) Griffin Bell as Chief Judge, former Secretary of Transportation (Ford Administration) William Coleman as Appellate Judge, Chief Justice of the Rhode Island Supreme Court Frank Williams as Appellate Judge, and former Congressman and Attorney General for the State of Pennsylvania Pete Biester as Appellate Judge.
On November 8, 2004, before any cases came before the Review Panel, a District Court granted a habeas petition, and stayed the military commission trial of Salim Ahmed Hamdan. Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004). On December 10, 2004, the Appointing Authority stopped all military commissions pending resolution of the habeas issues in the federal courts. On July 15, 2005, a D.C. Circuit panel unanimously reversed the District Court and dissolved the stay imposed on Hamdan’s military commission. Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005). Shortly thereafter, the Supreme Court granted certiorari, and military commission trials were again halted.
On June 29, 2006, the Supreme Court ruled in Hamdan v. Rumsfeld, 548 U.S. 557, 635 (2006), that the military commission scheme violated the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions, and that the Appellant was entitled to the protections of Common Article 3 of the Geneva Conventions. In response, Congress passed the Military Commissions Act (MCA) of 2006.
In October 2006, the President signed into law the 2006 Military Commissions Act, which created the Court of Military Commission Review, composed of military appellate judges or civilians with “comparable qualifications.” The Court was authorized to sit as a whole or in panels of three. Its appellate jurisdiction was limited to matters of law. Fifteen military appellate judges and four civilians of “comparable qualifications” were appointed to the Court by the Secretary of Defense. The Court heard and issued decisions on interlocutory issues in four cases.
In September 2007, the Court made three important decisions. In United States v. Khadr, 07-001 (Sept. 19, 2007), the Court decided that the Government appeal was timely and the Deputy Secretary of Defense had authority under 10 U.S.C. § 113 to approve the Court’s rules of practice and it clarified the authority of the Deputy Chief Judge.  In United States v. Khadr, 07-001 (Sept. 24, 2007), the Court held that the military commission could determine that it had personal jurisdiction over Khadr in accordance with long-standing practice in military courts-martial. The military commission could itself decide whether Khadr was an unlawful enemy combatant under the 2006 MCA. In a separate order dated September 24, 2007, the Court ruled the Deputy Secretary of Defense had authority to create the position of Deputy Chief Judge, and the Deputy Chief Judge could assign the judges to Khadr's panel.  In Khadr v. United States, 529 F.3d 1112 (D.C. Cir. 2008), the D.C. Circuit declined to review the decision of the Court of Military Commission Review.
Two writs filed with the Court were summarily denied: Al Odah, CMCR No. 08-001 (March 21, 2008); and Mohammed, CMCR No. 08-002 (June 3, 2008). The writ in Jawad, CMCR No. 08-004 (July 31, 2009) was denied after oral argument on January 13, 2009.
In October 2008, the Court dismissed the government’s appeal in United States v. Khadr, 753 F. Supp. 2d 1153 (CMCR 2008) because it was not filed in a timely fashion in accordance with Section 950d of the 2006 MCA.

On June 24, 2011, the Court affirmed the finding and sentence of Salim Ahmed Hamdan and decided three issues: (1) Congress had the power to define the offense of providing material support to terrorism as a violation of the international law of war under Article I of the U.S. Constitution; (2) Hamdan’s conviction for that offense is not the result of an ex post facto prosecution prohibited by both the U.S. Constitution and international law; and (3) the 2006 Military Commissions Act does not violate the Constitution by making aliens, but not citizens, subject to trial by military commission.  On October 16, 2012, the U.S. Court of Appeals for the District of Columbia Circuit reversed Hamdan’s conviction for material support to terrorism in Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012), in holding the Military Commissions Act did not authorize retroactive prosecution for conduct that was committed before the Act’s enactment and was not prohibited by U.S. law at the time the conduct occurred. The international law of war did not proscribe material support for terrorism as a war crime at the time that Hamdan was providing such support to al Qaeda and because material support for terrorism was not a pre-existing war crime, Hamdan’s conviction for material support for terrorism could not stand.

On September 9, 2011, the Court affirmed the findings and sentence of Ali Hamza Ahmad Suliman al Bahlul and decided six issues: (1) his convictions for conspiracy, providing material support to terrorism, and solicitation constitute war crimes triable by military commission; (2) the offense of providing material support for terrorism did not violate the Ex Post Facto Clause of the U.S. Constitution; (3) al Bahlul’s communications did not constitute political speech protected by the First Amendment of the U.S. Constitution; (4) the 2006 Military Commissions Act is not an unconstitutional Bill of Attainder; (5) his prosecution does not violate the Constitution’s Equal Protection Clause by making aliens, but not citizens, subject to trial by military commission; and (6) al Bahlul’s sentence of life imprisonment is not inappropriately severe and disproportionate to the sentences of closely-related defendants.  On April 23, 2013, the U.S. Court of Appeals for the District of Columbia Circuit vacated a previously-issued panel decision and ordered an en banc review of al Bahlul’s case. On July 14, 2014, the U.S. Court of Appeals for the District of Columbia Circuit: (1) “reject[ed] Bahlul’s ex post facto challenge to his conspiracy conviction” Slip Opinion at 53; (2) held prosecution of Bahlul for providing material support to terrorism and solicitation was “a plain ex post facto violation—again, assuming without deciding that the protection of the Ex Post Facto Clause extends to Bahlul,” id. at 49-50, 52; (3) vacated Bahlul’s convictions of providing material support to terrorism and solicitation, id. at 53; (4) remanded four issues to the panel that first heard Bahlul’s case, id. at 53; and (5) “after panel consideration, [of the four issues] remand[ed] to the CMCR to determine the effect, if any, of the two vacaturs on sentencing,” id. at 53. The July 14, 2014 Judgment and Remand are attached.

On March 27, 2013, the Court dismissed the American Civil Liberties Union (ACLU) and ACLU Foundation requests for a writ of mandamus seeking release of documents by the military commission. On March 27, 2013, the Court dismissed various media requests for a writ of mandamus seeking release of documents by the military commission.

On April 24, 2014, the Court denied Al Qosi’s requests for new trial and extraordinary writs because appointed defense counsel did not have Al Qosi's permission to file the request for new trial and the extraordinary writs. Appointed defense counsel acted without an established attorney-client relationship with Al Qosi, and her actions on Al Qosi's behalf are a nullity. The requests to intervene by Al Hawsawi and Al Shibh were also denied. Al Qosi has appealed the dismissal of his appeal to U.S. Court of Appeals for the District of Columbia Circuit.

The Court’s oral arguments in four cases have been held at the United States Court of Appeals for the Federal Circuit in Washington, D.C.
The 2009 Military Commissions Act (MCA) modified the CMCR, renaming it the United States Court of Military Commission Review, and expanding the scope of the Court’s jurisdiction beyond the former CMCR, to include factual sufficiency of the evidence, making the scope of review the same as the Service Courts of Criminal Appeals created in the Uniform Code of Military Justice. The 2009 MCA was amended in 2011 and 2013. The Secretary of Defense appoints judges from the Service Courts of Criminal Appeals to the United States Court of Military Commission Review. The 2009 MCA granted the President authority to appoint civilian judges, with the advice and consent of the Senate. Here is the list of judges currently serving on the USCMCR.
The 2009 MCA’s protections of the independence of appellate judges is similar to the protections of appellate judges assigned to the Service Courts of Criminal Appeals under the Uniform Code of Military Justice, except judges assigned to the United States Court of Military Commission Review have statutory tenure. As such, the 2009 MCA is more protective of the independence of appellate judges than the Uniform Code of Military Justice.

The Rules of Practice for the United States Court of Military Commission Review were primarily derived from the Rules of Practice used by the Service Courts of Criminal Appeals for the review of courts-martial cases involving military personnel.