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.
U.S. Court of Military Commission 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.
The Court’s oral arguments 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 Court of Appeals for the District of Columbia Circuit suggested statutory clarification of the employment limitations for civilian judges, see In re Khadr
, 823 F.3d 92 (D.C. Cir. 2016), and that military appellate judges should be nominated by the President and confirmed by the Senate. See In re Al-Nashiri
, 791 F.3d 71 (D.C. Cir. 2015). There was also a question concerning whether military judges left the Court of Military Commission Review upon retirement from active duty. Congress and the President took corrective action through legislative changes and modification of the appointment process.
The 2009 MCA was amended in 2011, 2017, and 2018 to address these legal issues. 10 U.S.C. 950f
. The Secretary of Defense recommends military judges from the Service Courts of Criminal Appeals and distinguished civilian lawyers to be appellate judges on the United States Court of Military Commission Review. The President appoints all 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.
In Ortiz v. United States
, 138 S.Ct. 2165 (2018), the Supreme Court concluded that military judges on the Court of Military Commission Review could also serve as judges on the service Courts of Criminal Appeals.