GPSolo Magazine - March 2004

International Law And Practice
Military Commissions And The War On Terrorism

On November 13, 2001, President Bush unveiled a new weapon in the war on terrorism: the military commission. He authorized its use to deal with today’s war criminals: international terrorists. The president’s goal was to create an efficient means of prosecuting these criminals without the delay, publicity, and danger of compromise to classified information that might result from criminal trials in federal district court.

Military commissions are fundamentally different from courts-martial. The jurisdiction of courts-martial is limited to members of the armed forces and those accompanying the armed forces. Military commissions, on the other hand, have broader jurisdiction—they can be used to try persons who are not part of an armed force. They may try civilians and enemy soldiers who violate the laws of war. Military commissions may also try civilians who commit crimes in occupied territories during the period of occupation when civilian courts are not functioning.

The terrorists who carried out the attacks on September 11, 2001, are clearly unlawful belligerents. They violated the law of war by waging a war of aggression against civilians and by attacking without uniforms and carrying concealed weapons.

The military commissions created by President Bush’s order are designed to try only non-U.S. citizens. The order applies to all persons who are members of the terrorist organization Al-Qaeda or who have engaged in acts of international terrorism adversely affecting the United States. The order also applies to those who knowingly harbor such terrorists. The order states that it will apply only when “it is in the interest of the United States that such individual be subject to this Order” and requires that the president determine in writing that an individual meets the above criteria. This gives the president the discretion to decide on a case-by-case basis whether it is appropriate to use military commissions.

The order requires that detained terrorists be treated humanely, that they not be discriminated against, that they be afforded adequate food, drinking water, shelter, clothing, and medical treatment, and that they be allowed to freely exercise their religion, to the extent consistent with the requirements of their detention. Individuals “may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.” To draft charges, military commissions may rely on the laws of war, which prohibit unlawful belligerency and aggression. Although Title 18 of the U.S. Code contains an extensive list of crimes applicable to international terrorists, it would not be appropriate for military commissions to rely on these laws. Military commissions have traditionally prosecuted persons for violations of the laws of war and military law, not violations of Title 18.

Military commissions are not bound by the procedural rules of civilian courts. Constitutional protections, including the right to a grand jury hearing and trial by jury, do not apply. The preamble of the Manual for Courts-Martial states that military commissions shall be guided by the rules of procedure and evidence prescribed for courts-martial, unless the president or other competent authority directs otherwise. However, the president did direct otherwise: His order specifically required the secretary of defense to issue rules defining the procedures and evidentiary rules for military commissions.

The secretary of defense issued a Defense Department Order (DoD Order) establishing rules for military commissions. Among other things, the DoD Order requires the prosecutor to provide the defendant with evidence that the prosecution intends to offer at trial and exculpatory evidence. It gives the defendant the right to obtain witnesses and documents for use in the defense case, and the right to investigative and other resources. The defendant also has the right to be notified of the charges, and to obtain interpreters, as necessary.

The commissions will be composed of at least three and no more than seven members. The members must be commissioned officers of the U.S. armed forces, to include Reserve and National Guard personnel on active federal duty. One of the members must be a judge advocate who will preside over the commission, rule on the admission of evidence, and perform all of the other duties traditionally associated with a judge. Qualified military attorneys (judge advocates) will be detailed to represent both the prosecution and the defense before the commissions. The defendant has the right to request a specific military attorney to represent him. The defendant also has the right to be represented by a civilian attorney, provided that attorney meets certain criteria.

The Federal Rules of Evidence will not apply. Instead, the DoD Order establishes special evidentiary rules. Military commissions will admit evidence having probative value to a reasonable person. The commission’s presiding officer will decide whether evidence meets this standard, but the presiding officer may be overruled by a majority of the commission. The commission may admit hearsay, such as prior testimony, statements, and reports. Both the prosecution and the defense have the right to call witnesses to explain or contradict such hearsay evidence.

Military commissions will be required to protect classified information. Although the DoD Order requires military commissions to conduct open hearings, it provides an exception permitting the presiding officer to close a hearing when necessary to protect classified information. The DoD Order also permits the commission to issue protective orders to ensure that the parties do not disclose such information.

The DoD Order includes rules for the conduct of trials. Military commissions will be required to grant defendants a full and fair trial. Defendants will be entitled to the presumption of innocence and may be convicted only if proven guilty beyond a reasonable doubt. They will not be required to testify against themselves, will have the right to be present at trial, and will not be prosecuted twice for the same offense.

The DoD Order includes posttrial rules. The commissions will submit verbatim records of their trials to the president for review and final decision. A special review panel will review each record of trial and make recommendations on disposition. Military commissions will have exclusive jurisdiction over their cases; defendants will not have the right to seek remedy in any other United States or international court.

Military commissions are well suited to the trial of international terrorists. They are efficient and effective means of prosecuting terrorists without danger of compromising intelligence or the military mission. They afford terrorists substantial procedural rights while protecting the safety of the men and women combating terrorism worldwide.

R. Peter Masterton is a Lieutenant Colonel in the U.S. Army and currently serves as the commander of the U.S. Armed Forces Claims Service in Korea.

For More Information About The Section Of International Law And Practice

- This article is an abridged and edited version of one that originally appeared on page 1165 of The International Lawyer, Winter 2002 (36:4).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221 or go to

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- Periodicals: The International Lawyer, quarterly journal; International Law News, quarterly.

- Books and Other Recent Publications: Careers in International Law, 2d ed. ; Negotiating and Structuring International Commercial Transactions, 2d ed. ; ABA Guide to International Business Negotiations, 2d ed. ; Joint Ventures in the International Arena; ABA Guide to Foreign Law Firms, 3d ed. ; International Lawyer’s Deskbook, 2d ed .


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