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Military Commissions and Due Process

After the Supreme Court decision in Hamdan v. Rumsfeld, the Administration worked closely with Congress to create a framework to try unlawful enemy combatants before military commissions. Following extensive debate and many hearings on the topic, the Senate and House passed the Military Commissions Act of 2006 (MCA) by large majorities, and the President signed it into law on October 17, 2006.

Modeled after the Uniform Code of Military Justice (UCMJ) - the code that the U.S. military uses to try soldiers, sailors, airmen, and Marines -- the MCA provides unprecedented rights to alien unlawful enemy combatants at trial. The MCA balances U.S. international law obligations and the national security of the U.S. while the conflict continues.

The Obama administration kept most of the rules and procedures contained within President Bush’s MCA 2006, but enacted key reforms. Those reforms include (but are not limited to) how hearsay is to be admitted, the inadmissibility of statements obtained by cruel, inhuman and degrading treatment, and the right of a detainee to request specific military counsel. Those reforms are included in the chart below.

The MCA provides alien unlawful enemy combatants virtually the same due process and rights that are provided by the United Nations in their war crimes tribunals, such as the International Criminal Tribunal of Yugoslavia (ICTY) and the International Criminal Tribunal of Rwanda (ICTR), hereinafter ICTYR.

A side-by-side comparison of the rights and procedures illustrates the point. The following table lists the rights, due process protections, and rules related to a typical trial under the UCMJ, the MCA, and the ICTYR.

The comparison table is available for PDF download here.

Comparison of the Uniform Code of Military Justice (UCMJ),
Military Commissions Act of 2009 (MCA 2009),
International Criminal Tribunal of Yugoslavia (ICTY)
and the International Criminal Tribunal of Rwanda (ICTR)

 Military Commission

* ICTY and ICTR Statutes are identical on all key topics discussed here. The ICTR Statute, however, has one fewer article in the substantive law section, and as a result the article numbers are different. ICTY Statute ("ICTYSt.") Article 21 corresponds to ICTR Statute Article 20. Similarly, the ICTR Rules of Procedure and Evidence are based upon, and therefore virtually identical to, the ICTY Rules of Procedure and Evidence ("ICTYRPE"). This chart refers to the ICTYRPE only. The corresponding ICTR provisions can be easily found at: http://www.ictr.org.
“MRE” is Military Rules of Evidence