The Department of Defense Rules for Military Commissions

📖 The Scoop

Military commissions began in Nov 2004 against four persons declared eligible for trial pursuant to President Bush's Military Order (M.O.) of 13 Nov 2001, pertaining to the detention, treatment, and trial of noncitizens in the war against terrorism, but proceedings were suspended after a federal district court found one of the defendants could not be tried under the rules established by the DoD. The government has appealed the case, Hamdan v. Rumsfeld, to the D.C. Circuit on an expedited basis, while the petitioners seek to take the matter directly to the Supreme Court. The M.O. has been the focus of intense debate both at home and abroad. Critics argued that the tribunals could violate the rights of the accused under the Constitution as well as international law, thereby undercutting the legitimacy of any verdicts rendered by the tribunals. The Administration responded by publishing a series of military orders and instructions clarifying some of the details. The procedural aspects of the trials are to be controlled by Military Commission Order No. 1 (M.C.O. No. 1). The DoD has also released two more orders and nine "Military Commission Instructions," which set forth the elements of some crimes that may be tried, establish guidelines for civilian attorneys, and provide other administrative guidance. These rules were praised as a significant improvement over what might have been permitted under the M.O., but some argue that the enhancements do not go far enough. This report provides a background and analysis comparing military commissions as envisioned under M.C.O. No. 1 to general military courts-martial conducted under the UCMJ. The report notes some of the criticism directed at the President's M.O., and explains how those concerns are addressed by the military commission orders and instructions. The report provides two charts to compare the regulations issued by the DoD and standard procedures for general courts-martial under the Manual for Courts-Martial.

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