both have the opportunity to voir dire the members and to challenge for cause individuals who appear to be biased.809 344. The MCA 2009 and its implementing regulations contain provisions against unlawful influence of the Convening Authority in the conduct of the proceedings.810 They also stipulate that “[n]o person may attempt to coerce or, by any unauthorized means, influence (A) the action of a military commission (…) or any member thereof, in reaching the findings or sentence in any case; (B) the action of any convening, approving, or reviewing authority with respect to their judicial acts; or (C) the exercise of professional judgment by trial counsel or defense counsel”.811 The MCA 2006 included similar provisions against unlawful influence on the various actors.812 345. Military commissions are to be publically held except in cases where the closure of part or all the proceedings is deemed necessary by the military judge in order to “protect information the disclosure of which could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods, or activities” or “ensure the physical safety of individuals”.813 Access to the proceedings may however be limited by the location, the size of the facility, physical security requirements, and national security concerns.814 c. Findings and Analysis RIGHT TO BE TRIED BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL ESTABLISHED BY LAW 346. The first iteration of the military commissions was established by a military order of President Bush, whereas subsequent versions were created by law, namely by the MCAs of 2006 and 2009. The commissions were created for the specific purpose of trying “enemy combatants” and “unprivileged enemy belligerents”. They had no established procedures and the laws constituting them in 2006 and 2009 were enacted years after detainees entered into US custody.815 While judges and counsel may be able to rely on a large and welldeveloped body of law and practice from federal courts and courts-martial to interpret the MCA, the military commissions remain a process “statutorily created with elements of both court-martial and federal court practice” and, as such, “it may be unclear exactly what 809 They are also each entitled to one peremptory challenge. MCA 2009, § 949f. MCA 2009, § 949b(a): “(1) No authority convening a military commission under this chapter may censure, reprimand, or admonish the military commission, or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the military commission, or with respect to any other exercises of its or their functions in the conduct of the proceedings”; RMC, Rule 104(a)(1). 811 MCA 2009, § 949b(a)(2); RMC, Rule 104(a)(2). 812 MCA 2006, § 949b(a). 813 MCA 2009, § 949d(c)(2); RMC, Rule 806; RTMC 2011, Regulation 19-6. These provisions are not limited to trial. They are applicable to all aspects of the proceedings, “from the swearing of charges until the completion of trial and appellate proceedings or any final disposition of the case”. RTMC 2011, Regulation 19-2. See, also, United States Military Commission, United States of America v. Mohammad et al., “Motion of the American Civil Liberties Union for Public Access to Proceedings and Records”, 2 May 2012, pp. 11-12. 814 RMC, Rule 806. 815 Praust, “Still Unlawful”, op. cit., note 754, p. 370. 810 150