Military Commissions are Courts usually set up by Military Commanders in the field to try persons accused of certain offenses during war.

The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues Congressional Research Service  

Military Commissions 

Military commissions are courts usually set up by military commanders in the field to try persons accused of certain offenses during war.(28) They may also try persons for ordinary crimes during periods of martial law or military occupation, where regular civil courts are not able to function.(29) Past military commissions trying enemy belligerents for war crimes directly applied the international law of war, without recourse to domestic criminal statutes, unless such statutes were declaratory of international law.

(30) Historically, military commissions have applied the same set of procedural rules that applied in courts-martial.(31) By statute, military commissions have long been available to try “offenders or offenses designated by statute or the law of war.”(32) For the most part, military commissions have been employed where U.S. Armed Forces have established a military government or martial law, as in the war with Mexico, 1846-1848, the Civil War, the Philippine Insurrection of 1899-1902, and in occupied Germany and Japan after World War II.(33) President Bush’s Military Order setting up military commissions appeared to have been designed to replicate a pair of military commission orders issued during World War II by President Roosevelt for the trial of German saboteurs caught within the territory of the United States after having evaded U.S. coastal defenses. These tribunals were historically a bit anomalous in that they took place in Washington, DC, during a period when the civilian courts were open. A similar practice during the Civil War, which accounted for a small number of the military commission cases, was held unconstitutional. The Supreme Court held essentially in Ex parte Milligan34 that military trials of persons who had never been members of the Armed Forces of the United States could never be valid on friendly territory where martial law has not been declared and civilian courts are functioning. 

However, the Supreme Court upheld the F.D.R. tribunals by explaining 

 28 See CRS Report RL31191, Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions, by Jennifer K. Elsea (providing a general background of U.S. history of military commissions). 

29 See Hamdan v. Bush, 548 U.S. 557, 595 (2006). In looking at historical precedent, the Hamdan Court suggested, it is important to distinguish which type of jurisdiction a military commission is exercising, although the distinction is often blurred. Id. at 597 & note 7. 

30 See U.S. Army Field Manual (FM) 27-10, The Law of Land Warfare, Section 505(e) [hereinafter “FM 27-10”]. 

31 See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 841-42 (2d ed. 1920)(noting that “in the absence of any statute or regulation,” the same principles and procedures commonly govern, though possibly more “liberally construed and applied”); David Glazier, Note, Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military Commission, 89 VA. L. REV. 2005 (2003). 

32 10 U.S.C. §821. There are only two statutory offenses under the Uniform Code of Military Justice (UCMJ) for which convening a military commission is explicitly recognized: aiding the enemy and spying (in time of war). 10 U.S.C. §§904 and 906, respectively. The circumstances under which civilians accused of aiding the enemy may be tried by military tribunal have not been decided, but a court interpreting the article may limit its application to conduct committed in territory under martial law or military government, within a zone of military operations or area of invasion, or within areas subject to military jurisdiction. See FM 27-10, supra footnote 30, at para. 79(b)(noting that treason and espionage laws are available for incidents occurring outside of these areas, but are triable in civil courts); GEORGE B. DAVIS, A TREATISE ON THE MILITARY LAW OF THE UNITED STATES 417-18 (3d ed. 1913)(arguing that arts. 45 & 46 of the Articles of War, the precursors to 10 U.S.C. §§904 & 906, were essentially reliant on martial law to establish jurisdiction over civilians). Spying is not technically a violation of the law of war, but violates domestic law and traditionally may be tried by military commission. See FM 27-10, supra footnote 30, at para. 77 (explaining that spies are not punished as “violators of the law of war, but to render that method of obtaining information as dangerous, difficult, and ineffective as possible”). 33 For a review of military commission precedent, see David Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 VA. J. INT'L L. 5 (2005). 34 71 U.S. (4 Wall.) 1 (1867).

that the holding in Milligan was limited to cases in which civilians—persons who are not members of the armed forces of an enemy government—were tried by military commission, and did not preclude the government from trying enemy belligerents for violations of the law of war, regardless of the operational status of the civilian courts. The Bush Administration established rules prescribing detailed procedural safeguards for the tribunals.35 These rules were praised as a significant improvement over what might have been permitted under the language of the M.O., but some continued to argue that the enhancements did not go far enough.36 Critics also noted that the rules did not address the issue of indefinite detention without charge, as appeared to be possible under the original M.O.,37 or that the Department of Defense may continue to detain persons who have been found not guilty by a military commission.38 The Pentagon reportedly stated that its Inspector General (IG) looked into allegations, made by military lawyers assigned as prosecutors to the military commissions, that the proceedings were rigged to obtain convictions, but the IG did not substantiate the charges.39 The Military Commissions Act (“MCA”)40 grants the Secretary of Defense express authority to convene military commissions to prosecute those fitting the definition under the MCA of “alien unprivileged enemy belligerents.”41 The Secretary delegated the authority to a specially appointed “convening authority,” who has responsibility for accepting or rejecting charges referred by the prosecution team, convening military commissions for trials, detailing military commission members and other personnel, approving requests from trial counsel to communicate with the media, approving requests for expert witnesses, approving plea agreements, carrying out post-trial reviews, and forwarding cases for review, along with other duties spelled out in the MCA or in DOD’s Regulation for Trial by Military Commission.42 The MCA eliminates the requirement for military commissions to conform to either of the two uniformity requirements in article 36, UCMJ, which President Bush’s military commissions were

 held in Hamdan to violate. Instead, it establishes chapter 47A in Title 10, U.S. Code and excepts military commissions under this chapter from the requirements in article 36.43 It provides that the UCMJ “does not, by its terms, apply to trial by military commissions except as specifically provided in this chapter.” While declaring that the enacted chapter is “based upon the procedures for trial by general courts-martial under [the UCMJ],” it establishes that “[t]he judicial construction and application of [the UCMJ], while instructive, is therefore not of its own force binding on military commissions established under this chapter.”44 It expressly exempts these military commissions from UCMJ articles 10 (speedy trial), 31 (self-incrimination warnings), and 32 (pretrial investigations),45 and the MCA 2006 amended articles 21, 28, 48, 50(a), 104, and 106 of the UCMJ to except military commissions under chapter 47A.46 Other provisions of the UCMJ are to apply to trial by military commissions under chapter 47A only to the extent provided therein.