Chapter4 Access to Justice | 85
a.
The Military Commissions Act of 2009
195. The military commissions and trial practice before the military commissions are
governed by four principal sources: the Military Commissions Act of 2009, the
Manual for Military Commissions of 2012, the Regulation for Trial by Military
Commission of 2011, and the Military Commission Trial Judiciary Rules of Court of
2013.
196. The 2009 MCA gave rise to the reform of the military commissions, granting many
of the basic procedural protections existing in courts-martial procedures. 228 It set
jurisdiction over 32 enumerated offenses and over two articles under the UCMJ and
traditional law of war violations to the extent they were codified in the statute. In
addition, the 2009 MCA introduced new language to refer to the individuals subject
to the military commissions substituting the term “unlawful enemy combatant” for
“unprivileged enemy belligerent.”
197. The Chief Judge of the Military Commissions Trial Judiciary, who is appointed by the
Secretary of Defense, details a military judge to each case referred to trial. Military
judges are senior military officers and lawyers trained and certified to be military
judges. Each military commission consists of a military judge and a panel of at least
five “members,” who are active duty commissioned officers in the U.S. military and
play a role similar to that of a juror in civilian trials. In capital cases a minimum of
12 members and unanimous agreement on conviction and sentence are required. In
other cases, a guilty verdict and the imposition of a sentence must have the
concurrence of at least two-thirds of the members, as required in courts-martial of
U.S. service members. Sentences that include confinement for ten or more years
must be agreed upon by at least three-fourths of the members.
198. Convictions issued by a military commission may have up to four levels of review.
First, the Convening Authority for Military Commissions reviews the findings and
the sentence, which may only be reduced. Then, the conviction will be
automatically reviewed by the U.S. Court of Military Commission Review (CMCR).
The accused can waive this appellate review, except in capital cases. It should be
noted that the 2009 MCA expanded the scope of the Court’s jurisdiction to include
factual sufficiency of the evidence, making the scope of review the same as the
Service Courts of Criminal Appeals created in the UCMJ. Therefore, the CMCR has
authority to review questions of law and questions of factual sufficiency. Either
party can appeal the decision of the CMCR to the D.C. Circuit and then file a petition
for writ of certiorari to the U.S. Supreme Court. Before a convicted individual may
be put to death following exhaustion of the review process, the President must
authorize the execution.
228
For more information on the military commissions and its rules of procedures, see official website of the
Office of Military Commissions at www.mc.mil
Inter-American Commission on Human Rights | IACHR
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents