Military Commissions vs. Courts-Martial: Structure, Jurisdiction, and Key Differences

A court-martial applies the UCMJ (10 U.S.C. chapter 47) to persons subject to it, chiefly service members. A military commission under the Military Commissions Act (10 U.S.C. chapter 47A) tries any “alien unprivileged enemy belligerent” for the offenses listed in 10 U.S.C. § 950t. The two systems differ in who can be tried, the votes needed to convict (two-thirds of members for a commission, three-fourths for a court-martial), the rules for hearsay, and the appellate route: commission cases go to the Court of Military Commission Review and then the D.C. Circuit, while court-martial cases go to a Court of Criminal Appeals and then the Court of Appeals for the Armed Forces. Both can reach the Supreme Court.

Side by side

Feature	Court-martial	Military commission
Statute	UCMJ, 10 U.S.C. chapter 47	Military Commissions Act, 10 U.S.C. chapter 47A
Who can be tried	Persons subject to the UCMJ (Article 2)	"Any alien unprivileged enemy belligerent" (§ 948c)
Offenses	Punitive articles, Articles 77-134	Offenses listed in § 950t, such as murder of protected persons, attacking civilians, taking hostages, torture, murder in violation of the law of war, perfidy, terrorism, and providing material support for terrorism
Vote to convict	At least three-fourths of members present (Article 52)	Two-thirds of the primary members present (§ 949m(a))
Death sentence	Unanimous findings and unanimous vote for death	Unanimous conviction (or a guilty plea) and unanimous vote for death, with the penalty expressly authorized and noticed in advance (§ 949m(b)(2))
Life or confinement over 10 years	Set by the military judge in non-capital cases where all findings are for offenses after December 27, 2023 (Article 53(b))	Three-fourths of the primary members (§ 949m(b)(3))
Hearsay	Military Rules of Evidence	Hearsay not admissible at a general court-martial may be admitted only on notice and specific findings by the military judge (§ 949a(b)(3)(D))
First appeal	Court of Criminal Appeals (Article 66)	Court of Military Commission Review (§ 950f)
Civilian appellate court	Court of Appeals for the Armed Forces	D.C. Circuit, with "exclusive jurisdiction" over final commission judgments (§ 950g(a))
Supreme Court	Certiorari under 28 U.S.C. § 1259	Certiorari from the D.C. Circuit

Who can be tried

Courts-martial have jurisdiction over persons subject to the UCMJ under Article 2, and jurisdiction depends on that status (Solorio v. United States, 1987); see the legal basis for court-martial jurisdiction.

Military commissions. “Any alien unprivileged enemy belligerent is subject to trial by military commission” (10 U.S.C. § 948c). An “alien” is “an individual who is not a citizen of the United States”, and an “unprivileged enemy belligerent” is an individual, other than a privileged belligerent, who has engaged in hostilities against the United States or its coalition partners, has purposefully and materially supported such hostilities, or was part of al Qaeda at the time of the alleged offense (§ 948a(1), (7)). How the law of war applies in courts-martial as well as commissions is covered in military justice and the law of armed conflict.

The citizenship limit is statutory. The exclusion of U.S. citizens comes from the Military Commissions Act’s definition, not from a constitutional rule that citizens can never be tried by a military tribunal. In Ex parte Quirin, 317 U.S. 1 (1942), which upheld the World War II saboteurs’ trial by military commission, the Supreme Court said: “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.”

Votes

At a court-martial, a finding of guilty requires at least three-fourths of the members present (Article 52), and death requires unanimity on both guilt and sentence. At a commission, “No person may be convicted … except as provided in section 949i(b) of this title or by concurrence of two-thirds of the primary members present” (§ 949m(a)), other sentences require two-thirds, life or more than 10 years of confinement requires three-fourths, and death requires a unanimous conviction (or an accepted guilty plea) and a unanimous sentence vote (§ 949m(b)). The court-martial rules are described in the structure and sequence of a court-martial trial.

Hearsay

At a court-martial, hearsay is governed by the Military Rules of Evidence. At a commission, hearsay that would not be admissible at a general court-martial may be admitted only if the proponent gives advance notice, including how the evidence was obtained, and the military judge, considering corroboration, indicia of reliability, and “whether the will of the declarant was overborne,” finds that the statement is offered for a material fact, is probative, that direct testimony “is not available as a practical matter,” and that admission serves the purposes of the rules and the interests of justice (§ 949a(b)(3)(D)).

Appeals

A court-martial goes to the service Court of Criminal Appeals, then the Court of Appeals for the Armed Forces, then the Supreme Court; see how the military appellate court system functions. A commission judgment goes to the United States Court of Military Commission Review, whose judges include appellate military judges assigned by the Secretary of Defense and additional judges appointed by the President with Senate consent (§ 950f(b)), and then to the D.C. Circuit, which has “exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission” (§ 950g(a)).

How the current commission system came about

Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The Court concluded “that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions.” The decision is discussed with other leading cases in the landmark cases that shaped military law.
Military Commissions Act. Congress then enacted the Military Commissions Act of 2006 and revised the system in the Military Commissions Act of 2009 (Pub. L. 111-84, October 28, 2009), which added the current § 948c.
Boumediene v. Bush, 553 U.S. 723 (2008). “We hold these petitioners do have the habeas corpus privilege”, and section 7 of the 2006 Act “effects an unconstitutional suspension of the writ.”

Sources

This article is general information about military law, not legal advice for any individual case.