The Military Commissions Act of 2009:Overview and Legal Issues

Jennifer K. Elsea
Legislative Attorney

On November 13, 2001, President Bush issued a Military Order (M.O.) pertaining to the detention, treatment, and trial of certain non-citizens in the war against terrorism. Military commissions pursuant to the M.O. began in November 2004 against four persons declared eligible for trial, but the Supreme Court in Hamdan v. Rumsfeld invalidated the military commissions as improper under the Uniform Code of Military Justice (UCMJ). To permit military commissions to go forward, Congress approved the Military Commissions Act of 2006 (MCA), conferring authority to promulgate rules that depart from the strictures of the UCMJ and possibly U.S. international obligations. Military commissions' proceedings were reinstated and resulted in three convictions. 

Upon taking office in 2009, President Obama temporarily halted military commissions to review their procedures as well as the detention program at Guantánamo Bay in general, pledging to close the prison facilities there by January 2010, a deadline that passed unmet. The Secretary of Defense was also required to take steps to ensure that all proceedings before military commissions and the United States Court of Military Commission Review were halted, although some pretrial proceedings continued to take place. One case was moved to a federal district court. 

In May, 2009, the Obama Administration announced that it was considering restarting the military commission system with some changes to the procedural rules. Congress enacted the Military Commissions Act of 2009 (MCA 2009) as part of the Department of Defense Authorization Act (NDAA) for FY2010, P.L. 111-84, to provide some reforms the Administration supported and to make other amendments to the Military Commissions Act, as described in this report. The plan to transfer five "high value detainees" to New York for trial in federal court, announced in November, 2009, has been placed on hold due to resistance from Congress and some New York officials. (See H.R. 4738, S. 2977, H.R. 4588, H.R. 4556, H.R. 4463, and H.R. 4127) 

This report provides a background and analysis comparing military commissions as envisioned under the revised MCA to those established by the MCA 2006. After reviewing the history of the implementation of military commissions in the "global war on terrorism," the report provides an overview of the procedural safeguards provided in the MCA. Finally, the report provides two tables comparing the MCA as amended by the MCA 2009 to the original MCA enacted in 2006 and to general courts-martial. The first table describes the composition and powers of the military tribunals, as well as their jurisdiction. The second table, which compares procedural safeguards in courts-martial to the MCA as enacted and as amended, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts as well as CRS Report R40932, Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court, by Jennifer K. Elsea, to facilitate comparison with safeguards provided in federal court and international criminal tribunals. For pending legislation about military commissions, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress, by Anna C. Henning. .


Date of Report: April 6, 2010
Number of Pages: 56
Order Number: R41163
Price: $29.95

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