due process of law,792 and the Sixth Amendment provides for the right to a public trial by
an impartial jury.793 The applicability of these Constitutional Amendments to the military
commissions at Guantánamo has not been definitively determined or ruled upon by
domestic courts.
342. Under the applicable law and regulations, military commissions are convened by the
Secretary of Defense or his designee.794 The Office of this Convening Authority is under
the “authority, direction, and control of the Secretary of Defense” and consists primarily of
the Convening Authority, the Director of the Office of the Convening Authority and the
Legal Advisor to the Convening Authority.795 The Convening Authority has multiple other
roles, including, among others: referring charges to a military commission;796 detailing the
Chief Trial Judge;797 detailing members (jurors) for each trial;798 entering into a pretrial
agreement with an accused where applicable;799 and modifying the findings and sentence
of a military commission by dismissing a charge or specification or changing a finding of
guilty to a lesser offense where applicable.800
343. Military judges and members (jurors) of military commissions are commissioned officers
of the armed forces.801 The Chief Trial Judge is personally selected by the Convening
Authority from a pool of certified military judges,802 and in turn details military judges for
each commission.803 The military judge may be challenged by the defence or prosecution
for cause.804 Any military judge may also be changed by the Chief Trial Judge prior to the
assembly of the jury, without cause.805 Members who are deemed as “best qualified for the
duty by reason of age, education, training, experience, length of service, and judicial
temperament” are selected by the Convening Authority among a list of available officers
on active duty.806 They are to determine the guilt of the accused and, if necessary, his or
her sentence in light of available evidence and in accordance with the military judge’s
instructions.807 For this reason, members of the jury are not to have any previous
connection to either the charged crime or to the accused.808 The prosecution and defence
792
“No person shall (…) be deprived of life, liberty, or property, without due process of law”. US Constitution, Fifth
Amendment.
793
“In all criminal prosecutions, the accused shall enjoy the right to a (…) public trial, by an impartial jury (…)”.US
Constitution, Sixth Amendment.
794
MCA 2009, § 948h; RMC, Rule 504.
795
Regulation for Trial by Military Commission (RTMC), 6 November 2011, Regulation 2-1.
796
RMC, Rule 601. A distinction is to be made between the swearing and referring of the charges. The Convening Authority does
not swear the charges. Charges “will normally be sworn by an appropriate official in the office of the Chief Prosecutor of the
Office of Military Commissions”. RTMC, Regulation 3-1.
797
RMC, Rule 503(b)(2).
798
MCA 2009, § 948i(b); RMC Rule 503(a).
799
RMC, Rule 705.
800
MCA 2009, § 950b(c), RMC Rule 1107(c).
801
MCA 2009, § 948i(a); RMC, Rule 502(a)(1) and (c)(1); MCA 2009, § 948j(b).
802
RMC, Rule 503(b)(2).
803
RMC, Rule 503(b)(1).
804
In such case, the military judge will determine the relevance and validity of the challenges for cause. MCA 2009, §949f(a).
805
RMC, Rule 505(e)(1).
806
MCA 2009, § 948i(b); RMC, Rule 503(a)(1).
807
RMC, Rule 502(a)(2).
808
MCA 2009, § 948i(b).
149
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