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Military Orders, Rules and Access:
Resources for Practitioners
On November 13, 2001, President Bush issued a Military Order, which authorized the trial of non-U.S. citizens suspected of terrorism before military commissions. The specially created tribunals lack many of the basic fairness protections provided for in civilian courts as well as in U.S. military courts. On June 29, 2006, the U.S. Supreme Court in a sweeping decision struck down these commissions holding that they violated U.S. military law and the Geneva Conventions.
The President’s Order required the Secretary of Defense to develop regulations and procedures under which the military commissions will operate, and to appoint the officers who will sit on them. The regulations since developed by the Secretary of Defense raise significant concerns regarding the defendant’s right to a fair trial, including the lack of independent judicial oversight, lack of attorney-client confidentiality, lower standards of evidence, and restrictions on the defendant gaining access to civilian counsel. Appointed military counsel have publicly questioned the fairness of the military commissions.
In July 2003, the Administration designated six detainees held at the U.S. Naval Base at Guantanamo Bay, Cuba to be the first to be tried before the commissions. From February 2004 to July 2004, charges were referred to a military commission in four cases. The other two detainees were released in the interim. Preliminary hearings began for the four men beginning the week of August 23, 2004. In November 2004 at the proceeding for Salim Ahmed Hamdan, the commission was abruptly halted due to a decision by Judge James Robertson in the District Court of the District of Columbia, holding that military commissions as currently constituted violated U.S. and international law.
As of June 2006, ten individuals had been before military commission proceedings since they began in August 2004.