Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court

Jennifer K. Elsea
Legislative Attorney

The Obama Administration's decision to try certain detainees and other terrorist suspects in federal criminal court, including those accused of conspiring to commit the 9/11 terrorist attacks and the man arrested after a failed aircraft bombing on Christmas Day, 2009, and to try other detainees by military commission, has focused attention on the procedural differences between trials in federal court and those conducted under the Military Commissions Act (MCA), as recently amended. Some who are opposed to the decision argue that bringing detainees to the United States for trial poses a security threat and risks disclosing classified information, or could result in the acquittal of persons who are guilty. Others have praised the decision as recognizing the efficacy and fairness of the federal court system and have voiced confidence in the courts' ability to protect national security while achieving justice that will be perceived as such among U.S. allies abroad. Some continue to object to the planned trials of detainees by military commission, despite the amendments Congress enacted as Title XVIII of the National Defense Authorization Act for Fiscal Year 2010, P.L. 111-84, because they say it demonstrates a less than full commitment to justice or that it casts doubt on the strength of the government's case against those detainees. Four bills have been introduced in the House of Representatives to require military commission trials for certain classes of suspected terrorists or to authorize their detention: H.R. 4111, H.R. 4463, H.R. 4415, and H.R. 4127. One bill in the Senate, S. 2943, would require the Attorney General to consult with the Director of National Intelligence as well as the Secretaries of Defense and Homeland Security prior to proceeding against a terrorism suspect in the criminal justice system. 

This report provides a brief summary of legal issues raised by the choice of forum for trying accused terrorists and a table comparing selected military commissions rules under the Military Commissions Act, as amended, to the corresponding rules that apply in federal court. The table follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts, to facilitate comparison with safeguards provided in international criminal tribunals. For similar charts comparing military commissions as envisioned under the MCA, as passed in 2006, to the rules that had been established by DOD for military commissions and to general military courts-martial conducted under the Uniform Code of Military Justice (UCMJ), see CRS Report RL33688, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea. For information about legislation with relevance to Guantanamo detainees, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress, by Anna C. Henning.


Date of Report: January 26, 2010
Number of Pages: 27
Order Number: R40932
Price: $29.95

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