Courts-martial and military commissions are both military tribunals, but they serve fundamentally different purposes and operate under different legal frameworks. Courts-martial are the regular judicial arm of the military justice system, exercising UCMJ jurisdiction over U.S. servicemembers. Military commissions are specialized tribunals established to try alien unprivileged enemy belligerents for violations of the law of war and terrorism-related offenses. The modern military commission system, governed by the Military Commissions Act of 2006 (as amended in 2009), provides fewer procedural protections than courts-martial: hearsay evidence is more broadly admissible, the rules of evidence differ, and the appellate path runs through the Court of Military Commission Review and the D.C. Circuit rather than the service Courts of Criminal Appeals and CAAF. The Guantanamo military commissions, including the long-running prosecution of the alleged 9/11 conspirators, have been the primary venue for these proceedings and remain the subject of ongoing legal challenges regarding the validity of plea agreements and the admissibility of evidence obtained through coercive interrogation.
[XREF: q05 distinguishes courts-martial from military commissions in one paragraph; this topic provides the full comparative treatment]
What Is a Military Commission
Historical Origins and Constitutional Authority
Military commissions have existed since the founding of the republic. General George Washington convened military commissions during the Revolutionary War to try enemy combatants and spies. The constitutional authority for military commissions derives from Congress’s Article I powers to define and punish offenses against the law of nations, to make rules for the government and regulation of the armed forces, and to make rules concerning captures on land and water, as well as the President’s Article II authority as commander in chief.
Military commissions were used extensively during the Civil War (most notably in the trial of the Lincoln assassination conspirators), during World War II (in the trial of German saboteurs in Ex parte Quirin, 1942, and the prosecution of Japanese General Yamashita), and during the Korean and Vietnam Wars. The modern commission system was established in response to the September 11, 2001 attacks, when President Bush issued a Military Order authorizing the detention and trial by military commission of certain non-citizen terrorism suspects.
Modern Military Commissions Under the MCA 2006 and 2009
The Supreme Court’s decision in Hamdan v. Rumsfeld (2006) invalidated the original military commission structure established by the President’s Military Order, holding that the commissions were not authorized by Congress and violated the Geneva Conventions. In response, Congress enacted the Military Commissions Act of 2006 (MCA 2006), which provided the statutory authorization that the Court had found lacking. The MCA 2009 (enacted as part of the FY2010 NDAA) substantially amended the 2006 act, enhancing procedural protections for defendants, restricting the use of coerced statements, and more closely aligning commission procedures with court-martial procedures while maintaining significant differences.
Jurisdictional Differences
Courts-Martial: UCMJ Jurisdiction Over U.S. Servicemembers
Courts-martial exercise jurisdiction over persons subject to the UCMJ, which includes active-duty servicemembers, reservists on qualifying duty, certain retired members, and in limited circumstances, civilians accompanying the armed forces. Courts-martial try offenses defined by the UCMJ and apply the Manual for Courts-Martial’s procedural and evidentiary rules.
Military Commissions: Jurisdiction Over Alien Unprivileged Enemy Belligerents
Military commissions under the MCA have jurisdiction over “alien unprivileged enemy belligerents,” defined as individuals who are not U.S. citizens, who have engaged in hostilities or who have purposefully and materially supported hostilities against the United States or its coalition partners, and who are not lawful combatants (not entitled to prisoner of war status). U.S. citizens are constitutionally entitled to trial in Article III courts or by court-martial and cannot be tried by military commission.
Offenses Triable by Military Commission
Law of War Offenses
Military commissions have jurisdiction over offenses that are traditionally recognized as violations of the law of war. These include murder in violation of the law of war, attacking civilians, attacking civilian objects, pillaging, taking hostages, employing poison or similar weapons, torture, cruel or inhumane treatment, mutilating the dead, using treachery or perfidy, and improperly using a flag of truce.
Terrorism-Related Offenses
The MCA expanded the jurisdiction of military commissions beyond traditional law of war offenses to include terrorism-related offenses, including providing material support for terrorism, soliciting or recruiting for terrorism, and conspiracy to commit terrorism-related acts. The inclusion of these offenses has been controversial because some of them (particularly material support for terrorism and conspiracy) do not have clear historical antecedents as law of war offenses, raising questions about whether they fall within the constitutional scope of military commission jurisdiction.
The D.C. Circuit’s 2012 decision in Hamdan v. United States (Hamdan II) held that material support for terrorism was not a recognized law of war offense and could not be tried retroactively by military commission. This decision, and subsequent litigation, has narrowed the range of offenses that military commissions can try, particularly for conduct predating the MCA.
Offenses Not Triable in Civilian Courts
Military commissions were established in part because the government determined that certain terrorism suspects could not be feasibly tried in civilian federal courts due to national security concerns, the classification of evidence, the circumstances of capture, and the potential inadmissibility of evidence obtained through enhanced interrogation techniques. Whether this determination was correct has been a subject of intense debate, with critics pointing to successful civilian terrorism prosecutions as evidence that federal courts are fully capable of handling such cases.
Procedural Differences
Rules for Military Commissions vs. Rules for Courts-Martial
Military commissions operate under the Rules for Military Commissions (RMC) and the Military Commission Rules of Evidence (MCRE), which are modeled on but differ from the Rules for Courts-Martial (RCM) and the Military Rules of Evidence (MRE). The RMC and MCRE provide fewer procedural protections than their court-martial counterparts in several respects, though the MCA 2009 closed many of the gaps.
Evidentiary Standards and Admissibility of Hearsay
The most significant procedural difference involves hearsay evidence. Under the MCRE, hearsay is more broadly admissible than under the MRE. The military judge at a commission may admit hearsay if the proponent gives advance notice and the evidence is reliable and probative. This broader hearsay rule reflects the practical reality that many witnesses in terrorism cases are foreign nationals who may be unwilling or unable to testify in person at Guantanamo.
Classification and Classified Evidence Procedures
Military commissions employ a Classified Information Procedures Act (CIPA)-like framework to manage classified evidence. The prosecution may use classified evidence in its case while providing the defense with unclassified substitutes or summaries that convey the substance of the evidence without revealing sources and methods. Defense counsel with appropriate security clearances may review classified material, but the defendant (who typically does not hold a clearance) may be excluded from portions of the proceeding that involve classified evidence. These procedures create tension with the defendant’s right to confront the evidence and participate in the defense.
Panel Composition and Voting Requirements
Military commission panels are composed of military officers, similar to court-martial panels. A conviction requires a two-thirds vote of the panel (the same as a court-martial). A death sentence requires a unanimous vote of all panel members.
Constitutional Protections in Military Commissions
Due Process Rights of Defendants
Military commission defendants are entitled to due process protections under the Fifth Amendment’s Due Process Clause. The scope of these protections has been the subject of extensive litigation. Defendants have the right to be present at the trial, to confront witnesses (subject to the classified evidence procedures), to present a defense, to the assistance of counsel, and to an impartial tribunal. The Supreme Court in Boumediene v. Bush (2008) confirmed that non-citizen detainees at Guantanamo have the constitutional right to habeas corpus, which provides a mechanism for challenging the legality of their detention and trial.
Right to Counsel
Military commission defendants are entitled to military defense counsel at no cost and may also retain civilian counsel (who must obtain the necessary security clearances). The defense teams in major military commission cases have been large and well-resourced, reflecting the complexity and high profile of the cases. The relationship between appointed military counsel and the defendant has sometimes been strained, particularly in cases where the defendant has declined to recognize the legitimacy of the commission.
Habeas Corpus and Judicial Review
The Supreme Court’s decision in Boumediene v. Bush established that Guantanamo detainees, including those facing military commissions, have the constitutional right to petition for habeas corpus in federal district court. This right provides a mechanism for challenging the legality of detention, the jurisdiction of the commission, and the constitutionality of the procedures employed. Habeas petitions have resulted in the release of some Guantanamo detainees and have shaped the development of military commission law.
The Guantanamo Military Commissions
Structure and Current Status
The military commissions at Guantanamo Bay, Cuba, are housed in a purpose-built courthouse on the naval station. The commissions have been plagued by delays: some cases have been pending for more than a decade, with procedural motions, classification disputes, and appellate litigation consuming years before trial begins.
The 9/11 Case and Plea Agreement Controversy
The prosecution of Khalid Sheikh Mohammed and four co-defendants for the September 11, 2001 attacks is the most prominent military commission case. The case has been pending since charges were first sworn in 2008, with the arraignment occurring in 2012. Pretrial litigation, including motions related to the defendants’ treatment during CIA detention and the admissibility of evidence derived from that detention, has consumed over a decade. Plea agreement negotiations have been a subject of controversy, with debate about whether a plea deal in the 9/11 case serves justice.
Ongoing Legal Challenges
Military commissions continue to face legal challenges on multiple fronts: the constitutionality of trying certain offenses (particularly conspiracy and material support) before a military commission, the admissibility of evidence obtained through coercive interrogation, the adequacy of classified evidence procedures, the scope of appellate review, and the fundamental question of whether military commissions are an appropriate forum for trying terrorism cases.
Appellate Review for Military Commission Convictions
Court of Military Commission Review
Military commission convictions are first reviewed by the Court of Military Commission Review (CMCR), which is composed of military judges and civilian judges appointed by the Secretary of Defense. The CMCR reviews the record for legal error, sufficiency of evidence, and appropriateness of the sentence, similar to the function of the service Courts of Criminal Appeals in the court-martial system.
D.C. Circuit Court of Appeals
After CMCR review, the case may be appealed to the United States Court of Appeals for the D.C. Circuit, which exercises exclusive civilian appellate jurisdiction over military commission cases. The D.C. Circuit reviews the legal questions decided by the CMCR and has issued several landmark decisions shaping military commission jurisdiction and procedure.
Supreme Court Review
The Supreme Court may grant certiorari to review D.C. Circuit decisions in military commission cases. The Court has done so in several significant cases, including Hamdan v. Rumsfeld and Boumediene v. Bush, establishing the constitutional framework within which the commissions operate.
Key Supreme Court Decisions
Hamdan v. Rumsfeld (2006)
Hamdan held that the military commissions established by the President’s Military Order violated both the UCMJ and the Geneva Conventions. The Court found that the commissions were not authorized by any act of Congress and that their procedures departed from court-martial procedures without adequate justification. The decision prompted Congress to enact the MCA 2006.
Boumediene v. Bush (2008)
Boumediene held that the constitutional privilege of habeas corpus applies to foreign nationals detained at Guantanamo Bay and that the MCA’s provision stripping federal courts of habeas jurisdiction over detainee cases was an unconstitutional suspension of the writ. The decision established the baseline constitutional protections for Guantanamo detainees and provided the legal foundation for ongoing habeas litigation.
The Ongoing Debate: Should Military Commissions Continue to Exist
The future of military commissions remains uncertain. Advocates argue that commissions are necessary because they provide a forum for trying offenses committed on a foreign battlefield, they accommodate classified evidence that cannot be presented in open civilian court, and they apply the law of war to unlawful combatants who fall outside the civilian criminal justice framework. Critics argue that military commissions have been defined by delays and procedural dysfunction, that civilian federal courts have a superior record of successfully prosecuting terrorism cases, that the legitimacy of the commissions has been undermined by association with Guantanamo and enhanced interrogation, and that the system’s continued existence creates ongoing reputational costs for the United States.
Frequently Asked Questions
Can a U.S. citizen be tried by a military commission instead of a court-martial?
No. Military commissions under the Military Commissions Act have jurisdiction only over “alien unprivileged enemy belligerents,” which by definition excludes U.S. citizens. A U.S. citizen who commits offenses triable by military commission (such as law of war violations) must be tried either in an Article III federal court or, if the citizen is a servicemember, by court-martial under the UCMJ. This limitation is rooted in constitutional protections: U.S. citizens are entitled to the full protections of the Bill of Rights, including the right to trial by jury in a civilian court, which military commissions do not provide. The Supreme Court’s jurisprudence on this point traces back to Ex parte Milligan (1866), which held that military tribunals cannot try civilians when civilian courts are open and functioning.
How do military commission procedures differ from courts-martial in the handling of classified evidence?
Both systems have mechanisms for managing classified evidence, but military commissions provide broader government authority to withhold classified material from the defendant. At court-martial, classified evidence is handled through procedures modeled on the Classified Information Procedures Act (CIPA), and the accused (who typically holds or can obtain a security clearance as a servicemember) generally has access to the classified evidence through cleared defense counsel. At military commissions, the defendant (an alien detainee who cannot obtain a security clearance) may be excluded from portions of the proceedings involving classified evidence and may receive only unclassified substitutes or summaries. Defense counsel with appropriate clearances can review the classified material, but the defendant’s inability to personally review the evidence against them raises due process concerns that have been the subject of extensive litigation.
Disclaimer
This article is provided for general informational and educational purposes only and does not constitute legal advice. The information presented reflects the state of the law as of the date of publication and may not account for subsequent legislative changes, executive orders, or judicial decisions. Military justice is a complex and rapidly evolving field; the Uniform Code of Military Justice, the Manual for Courts-Martial, and service-specific regulations are subject to frequent amendment. No attorney-client relationship is created by reading this content. Servicemembers facing investigation, charges, or court-martial should consult with a qualified military defense attorney who can evaluate the specific facts and circumstances of their case. Reliance on the general information in this article without individualized legal counsel may result in adverse consequences.
