Military Commissions Seal
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How Military Commissions Work
A military commission is a military court of law traditionally used to try law of war and other offenses. An alien unprivileged enemy belligerent who has engaged in hostilities, or who has purposefully and materially supported hostilities against the United States, its coalition partners or was a part of al Qaeda, is subject to trial by military commission under the Military Commissions Act of 2009.
Convening a Military Commission
The military commission legal system begins when the prosecution drafts charges, when appropriate, against individuals subject to the Military Commissions Act of 2009. (This Act establishes procedures governing the use of military commissions.) Charges may then be sworn by any person subject to the Uniform Code of Military Justice. Once charged, a person is referred to as “the accused.” Individuals subject to trial by military commission are innocent until proven guilty beyond a reasonable doubt.
The Convening Authority decides whether to refer any or all charges to trial. A referral requires a finding of probable cause, similar to a grand jury in civilian court returning an indictment. If the Convening Authority decides to refer a case to trial, a military commission is created.
Serving on a Military Commission
The Secretary of Defense or his designee appoints the Chief Judge of the Military Commissions Trial Judiciary. The Chief Judge then details a military judge to each case referred to trial. Each military commission consists of a military judge and at least five “members” (similar to civilian jurors). In a case in which the accused may be sentenced to death, a minimum of 12 members and unanimous agreement are required. Commissioned officers of the Armed Forces on active duty are eligible to serve on a military commission unless they are disqualified because of a previous connection to the case.
Each of the Armed Forces nominates military officers to serve as members on military commissions. The Convening Authority selects the best-qualified nominees to be members based on education, training, experience, length of service and judicial temperament.
Presenting Evidence in a Military Commission
The rules of evidence for military commissions meet domestic and international legal standards while addressing battlefield situations, and as such, differ in some ways from rules used in U.S. civilian courts. For example, evidence seized outside the United States may not be excluded on the grounds it was not obtained pursuant to a search warrant. Similarly, statements of an accused are not excludable merely because the accused was not read a Miranda warning. Instead, the rules of evidence for military commissions focus on whether the evidence is reliable and probative, and if its admission is in the best interests of justice.
Determining a Verdict and Sentence
A guilty verdict and the imposition of a sentence must have the concurrence of at least two-thirds of the Military Commission members, the same number required in courts-martial of U.S. service members. Sentences that include confinement for 10 or more years must be concurred in by at least three-fourths of the members. If less than the required percentage votes for conviction, the accused is acquitted. (There are no “hung juries” as with civilian courts.)
If there is a finding of guilt, Military Commission members may impose any appropriate sentence—up to the maximum sentence authorized—including death, if the case is referred as a capital case by the Convening Authority. The Convening Authority may reduce the sentence, dismiss any charges or specifications or order a rehearing for any charge for which the accused was convicted. The prosecution may not appeal any mitigation action by the Convening Authority.
Appealing a Verdict and/or a Sentence
Each case which includes a guilty verdict is referred to the U.S. Court of Military Commission Review. After the Court of Military Commission Review makes its decision, either party may appeal further to the U.S. Court of Appeals for the District of Columbia Circuit. The Supreme Court of the United States may review by writ of certiorari the judgment of the Court of Appeals.