Trials by Military Commission

On November 13, 2001, President Bush issued an executive order seeking to establish military commissions to try individuals captured in the “War on Terror”. The first military commissions (those for Messrs. Salim Hamdan, David Hicks, Ali Hamza al-Bahlul, and Ibrahim al-Qosi) convened in Guantánamo in 2004, a few weeks after the CSRTs process began. The legality of these commissions was immediately challenged by Charles Swift and his team in Hamdan v. Rumsfeld. This challenge was successful, at least at first, when District Court Judge James Robertson ruled, on November 8, 2004, that the CSRT process used to assess the eligibility for trial by military commissions did not reach the level of a "competent tribunal" as demanded by the Geneva Conventions, and that the rules governing the military commissions needed to be revised in order to accord with the federal laws governing the treatment of soldiers.

Judge Robert's verdict was overturned by the Court of Appeals on July 15, 2005, thus paving the way for trial before the Supreme Court. The case was argued on March 28 of the next year and, on June 29, 2006, The Supreme Court ruled on Hamdan v. Rumsfeld, by a 5-3 vote, that military commissions, as defined under the President’s 2001 executive order, violated military law and the Geneva Conventions:

Concluding that Common Article 3 of the Geneva Conventions were "applicable" to Hamdan and others facing Military Commissions, Justice John Paul Stevens stated that it was Hamdan's right to be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable for civilized peoples" […] Justice Kennedy spelled out this position even more clearly, warning the administration that "violations of Common Article 3 [of the Geneva Conventions] are considered 'war crimes,' punishable as federal offences, when committed by or against United States nationals and military personnel (Andy Worthington, The Guantanamo Files, 281).

Yet, Justice Stephen Breyer pointed out that "Nothing prevents the President from returning to Congress to seek the authority he believes necessary." Following this advice, the president prevailed over Congress to pass legislation reauthorizing military commissions on October 17, 2006. The Military Commissions Act (MCA) authorized the creation of military commissions with procedures deviating from the traditional rules of the Uniform Code of Military Justice. Thus, the MCA creates a broad definition of "unlawful enemy combatant," attempts to suspend the right to habeas corpus, rejects the right to a speedy trial, allows a trial to continue in the absence of the accused, delegates the procedure for appointing military judges to the discretion of the Secretary of Defense, allows for the introduction of coerced evidence at hearings, permits the introduction of hearsay and evidence obtained without a warrant, denies the accused full access to exculpatory evidence and grants US officials retroactive immunity for abuse and torture committed since September 11, 2001 (see MCA Legal Analysis, Center for Constitutional Rights).

On June 12, 2008, the United States Supreme Court ruled, in Boumediene vs. Bush, that Guantánamo prisoners have a constitutional right to challenge the lawfulness of their detention in a federal court, and that this right cannot be substituted by the provisions of the 2005 Detainee Treatment Act. Consequently, the court ruled, the portions of the MCA that deny habeas protections to Guantánamo prisoners are unconstitutional.

The immediate effect of this decision on ongoing trials by military commission is unclear at the time of writing.

CSHRA is posting below the records of the trials by Military Commission.