On October 28, 2009, President Obama signed into law the Military Commissions Act of 2009, which was included in the National Defense Authorization Act (NDAA). MCA 2009 is the third attempt at creating a military commissions system. The new reforms to the system include some improvements over the Military Commissions Act of 2006 and the November 12, 2001 Military Order issued by President Bush which first created a military commissions system after September 11. MCA 2009 however, still fails to provide many of the fundamental elements of a fair trial found in federal civilian courts and a court martial system. For example, the rules permit the admission of coerced testimony obtained at the point of capture; they use an overbroad definition of who can be tried before military commissions that includes juveniles and those not even engaged in hostilities; and they permit defendants to be tried ex-post facto for conduct not considered to constitute a war crime at the time it was committed.
On April 27, 2010, the Department of Defense, after a long delay, finally released new rules governing the military commission proceedings. The new manual provides some needed reforms, such as giving defendants in capital cases the right to at least one additional counsel who is learned in applicable law relating to death penalty cases. Under the old rules, defendants in capital cases had no such right.
But the manual includes troubling rules that likely will undermine the constitutionality of future convictions. For example, the manual continues to permit the introduction of coerced statements under certain circumstances. In addition, unlike in courts-martial or regular federal courts, it permits evidence derived from statements obtained by cruel, inhumane, and degrading treatment if “use of such evidence would otherwise be consistent with the interests of justice.” In addition, the manual, consistent with the 2009 Military Commissions Act, continues to permit defendants to be tried ex-post facto for conduct not considered to constitute a war crime at the time it was committed, such as material support for terrorism.
To date seven individuals have been convicted in the military commissions system:
Salim Ahmed Hamdan (a federal court overturned his conviction in 2012)
Al Hamza Ahmed Sulayman al Bahlul (a federal court overturned his conviction in 2013)
Current Military Commission Cases
On November 13, 2009, the Justice Department announced that the cases of the September 11 defendants — who had been charged in the military commissions in 2008 — would be transferred for prosecution in the Southern District of New York. But in 2011, after Congressional opposition and controversy, Attorney General Eric Holder reversed that decision, and in 2012, the cases were re-referred for Military Commissions, where they are now in pre-trial hearings.
Military Commission Monitoring
Human Rights First is an official observer at the military commissions at the U.S. Naval Base at Guantanamo Bay, Cuba.
Background of Previous Military Commissions
On November 13, 2001, President Bush issued a Military Order that authorized the trial of non-U.S. citizens suspected of terrorism before military commissions. In July 2003, the Administration designated six men to be tried before the military commissions – all of them detainees at the U.S. Naval Base on Guantanamo Bay, Cuba. Two of the designated detainees were subsequently released. The military commissions began on August 23, 2004. On June 29, 2006, the U.S. Supreme Court in Hamdan v. Rumsfeld held that the military commissions violated U.S. law and the Geneva Conventions.
On October 17, 2006, President Bush signed the Military Commissions Act 2006 (MCA) into law. The MCA, among other things, establishes a system of military commissions for trials of non-U.S. citizen individuals who have been determined to be “unlawful enemy combatants.”
On July 30, 2004, the Defense Department began conducting “Combatant Status Review” hearings for those held at the U.S. Naval Base at Guantanamo Bay, Cuba. These hearings were created by the Bush Administration in response to the Supreme Court’s June 2004 decisions in Rasul v. Bush and Hamdi v. Rumsfeld, which affirmed detainees’ rights to challenge their detentions. Human Rights First believes these hearings fail to satisfy the Supreme Court’s rulings, and do not otherwise meet basic fair trial requirements of U.S. and international law.
DOD Documents CSRTs and ARBs
- Order Establishing Combatant Status Review Tribunal, July 7, 2004
- DOD Fact Sheet: Combatant Status Review Tribunals, July 7, 2004
- Combatant Status Review Tribunal: Notice to Detainees, July 12, 2004
Administrative Review Board
- Order re Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanamo Bay Naval Base, Cuba, May 11, 2004
Periodic Review Boards
On March 7, 2011, President Obama signed an executive order establishing additional review procedures for Guantanamo detainees to determine if continued detention is warranted. The review procedures, consisting of an initial hearing with an interagency Periodic Review Board (PRB), were to have begun in March 2012, as mandated by the executive order, but missed the deadline by more than a year.
In July 2013, the Pentagon announced that they were preparing to hold periodic review board hearings for 71 Guantanamo detainees, but did not provide a schedule or any other details about the reviews.