On November 13, 2001, President Bush issued an executive order which purported to establish military commissions to try those captured in the “War on Terror.” Under the order, the President authorized trials by military commission upon a presidential determination that there was “reason to believe” a detainee is or was an Al Qaeda member or engaged in hostilities targeting the United States. The order narrowed the scope of procedural protections for military commissions relative to the traditional courts-martial process, sharply limited the avenues for review of commission decisions, and granted discretion to “close” any portion of the proceeding and thereby exclude the accused from access to relevant evidence or the hearing itself. Furthermore, the order allowed for the admission of coerced statements or statements made by absent or undisclosed sources.
The President’s authority to establish military commissions without congressional approval was successfully challenged in Hamdan v. Rumsfeld. In response to the habeas petition of a military commission defendant, the Supreme Court ruled in June 2006 that the President overstepped his authority when creating military commissions inconsistent with domestic and international law.
Subsequently, however, Congress passed legislation authorizing military commissions. The Military Commissions Act (MCA) was enacted in direct response to the Supreme Court’s decision. In addition to the jurisdiction-stripping provisions described above, the MCA authorized the creation of military commissions with procedures deviating from the traditional rules of the Uniform Code of Military Justice (UCMJ). Among other shortcomings, the MCA 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, and denies the accused full access to exculpatory evidence.
Under the regulations promulgated subsequent to the MCA, Hamdan was formally charged in February 2007, along with two other detainees, Australian David Hicks and Canadian Omar Khadr. Under increasing pressure from the Australian government to return their citizen, David Hicks was returned to Australia after a plea agreement was reached in which he pled guilty to a charge of material support for terrorism and received a sentence of nine months imprisonment, served in Australia, and a yearlong “gag” order. The charges against the only other two detainees to have been charged under the new military commission procedures were initially dismissed. On June 4, 2007, two separate military judges dismissed all charges against Hamdan and Khadr on jurisdictional grounds. The judges held that the MCA authorized the military commissions to try only detainees classified as “unlawful enemy combatants,” yet the two defendants were classified only as “enemy combatants” by Combatant Status Review Tribunals (CSRTs).
However, on September 25, 2007, the Court of Military Commission Review - newly created and appointed by the Bush administration - ruled that the military commissions themselves had the authority to make the determination that a captive was an 'unlawful' enemy combatant, allowing the charges against Hamdan and Khadr to go forward. In light of this new ruling, on October 9, 2007, charges were filed against Mohamed Jawad, and on December 12, 2007, against Ahmed Mohammed Ahmad Haza al Darbi. The commissions against Hamdan and Khadr have continued, with the proceedings against Khadr, a juvenile at the time of his alleged conduct, attracting worldwide attention for the U.S.'s treatment of an alleged child soldier. On December 21, 2007, US Navy Judge Keith Allred, presiding in Hamdan's case, ruled that Hamdan is an "unlawful enemy combatant," and therefore not due the privileges and rights accorded to a prisoner of war. Judge Peter Brownback, presiding in Khadr's military commission, has not yet ruled as to Khadr's combatant status.
On February 11, 2008, charges were announced against an additional six detainees, including several so-called "high value detainees" - former ghost detainees in secret CIA prisons: Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi and Mohammed al Qahtani. Mohammed al-Qahtani, a client of the Center for Constitutional Rights in his habeas corpus petition, is one of these six detainees charged. The use of torture and cruel and inhumane treatment against al-Qahtani is well-documented; he was the subject of the first "Special Interrogation Plan," and the government interrogation log for him reveals he was subject to beatings, severe sleep deprivation, explicit threats against his family, sexual humiliation, attacks by dogs, exposure to low temperatures and loud music for extended periods, stress positions and at least 160 days of severe isolation, According to the Military Commissions Act, evidence obtained through coercion is admissible in the military commissions. These six detainees face potential execution if convicted.
- On November 13, 2001, President Bush issued an executive order which purported to establish military commissions to try those captured in the “War on Terror.”
- On November 8, 2004, D.C. District Court Judge James Robertson ruled in Hamdan v. Rumsfeld that Salim Hamdan – accused of being a driver of Osama bin Laden – could not be tried by a military commission established by executive order. The district court opinion stayed the military commission proceedings.
- On July 15, 2005, the Court of Appeals ruled 2-1 to overturn Judge Robertson’s November 8, 2004, decision in Hamdan v. Rumsfeld. The Circuit Court decision upheld the use of military commissions established by executive order to try Salim Hamdan. The D.C. Circuit held that the President had the authority to establish such military commissions without specific congressional approval, arguing that the Authorization for the Use of Military Force (AUMF), issued in 2001, was proper authorization.
- On November 7, 2005, the Supreme Court issued a writ of certiorari for Hamdan v. Rumsfeld.
- On March 28, 2006, Hamdan v. Rumsfeld was argued in the Supreme Court.
- On December 30, 2005, the Detainee Treatment Act of 2005 (DTA) was enacted into law, purporting to strip U.S. courts of jurisdiction over habeas corpus petitions filed on behalf of Guantánamo detainees and vesting exclusive review of final decisions of CSRTs and military commissions in the D.C. Circuit Court.
- On June 29, 2006, the Supreme Court decided Hamdan v. Rumsfeld and reversed the Court of Appeals decision. The Court held that the DTA did not preclude federal jurisdiction of pending habeas actions. It also ruled that the military commissions, as defined under the President’s 2001 executive order, violated military law and the Geneva Conventions.
- On October 17, 2006, the Military Commissions Act of 2006 was signed into law. Passed in response to the Hamdan ruling, the MCA authorized the creation of the military commissions. Among other things, the MCA attempts to suspend the right to habeas corpus, creates a broad definition of "unlawful enemy combatant," grants US officials immunity for abuse and torture, permits the use of secret evidence and allows the use of statements obtained through coercion in prosecutions.
- On February 2, 2007, charges were filed under the MCA against three defendants, Salim Ahmad Hamdan, Omar Khadr and David Hicks. Hicks' case was the first to be resolved, ending in a plea agreement was reached in which he was returned to Australia after he pled guilty to a charge of material support for terrorism and received a sentence of nine months imprisonment, served in Australia, and a yearlong "gag" order.
- On June 4, 2007, charges were initially dismissed against Hamdan and Khadr, on the basis that they had never properly been designated "unlawful enemy combatants." However, on September 25, 2007, the charges against both were reinstated.
- On October 9, 2007, the government filed charges against Mohamad Jawad, and on December 12, 2007, against Ahmed Mohammed Ahmad Haza al Darbi.
- On February 11, 2008, charges were announced against an additional six detainees, including several so-called "high value detainees" - former ghost detainees in secret CIA prisons: Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi and Mohammed al Qahtani. Mohammed al-Qahtani, a client of the Center for Constitutional Rights in his habeas corpus petition, is one of these six detainees charged. The use of torture and cruel and inhumane treatment against al-Qahtani is well-documented. These six detainees face execution if convicted.