Also known as: military commission
Written by attorneys · grounded in primary & secondary sources — see below
A tribunal convened by military authority to try persons for offenses against the law of war. Such a commission must operate within limits set by Congress, the Constitution, and the laws of war, including requirements for adequate jurisdictional findings and access to evidence by the accused and counsel.
Mustafa Mahmoud, held as an enemy combatant at a remote facility, petitions for habeas after a statute bars federal review and leaves only a status board that cannot accept new evidence or order release. The board refuses to consider exculpatory correspondence discovered after the commission proceedings. The court grants relief because the substitute process fails to let him contest the President's detention authority or seek release.
Marco Marquez is brought before a commission created by executive order to try him for aiding insurgents. The order withholds large portions of the investigative file from Marquez and his counsel and proceeds without establishing on the record that he is triable by such a body. A federal court enjoins the proceeding because the commission departs from the statutory conditions requiring compliance with federal law and the laws of war.
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Michael Miller and two companions land on a U.S. beach in civilian clothes carrying explosives and are captured while attempting to sabotage industrial targets. The President creates a military commission to try them for violations of the law of war. The commission proceeds because the accused are enemy belligerents whose conduct falls within offenses traditionally triable by such tribunals.
Meredith Maxwell, an attorney representing clients before military commissions, alleges that government interception of her overseas communications chills her ability to communicate with witnesses and co-counsel. She sues to enjoin the surveillance program on the ground that it will be used to gather evidence for commission proceedings. The court dismisses the suit for lack of standing because the alleged injury is too speculative.
Matthew Martinez, a U.S. citizen captured abroad and designated an enemy combatant, is held indefinitely without charges. He petitions for habeas, arguing that the military commission procedures afford no meaningful opportunity to contest the factual basis for his detention. The court holds that due process requires at least a neutral decisionmaker to assess the evidence supporting his status.
Miguel Mendoza, a civilian accused of aiding insurgents inside the United States, is ordered tried by military commission. The regular federal district court in his district remains fully operational. The court grants his petition to halt the commission because Congress may not authorize military trials of civilians when civilian courts are open and functioning.
Congress may not authorize military commissions to try civilians when regular Article III courts remain open and functioning. The Constitution requires that civilians receive the protections of the Fifth and Sixth Amendments, including grand jury indictment and jury trial before an independent judge, unless those courts are unavailable.
Any substitute must allow the detainee to challenge the President's authority to detain indefinitely, contest the military commission's fact-finding, introduce exculpatory evidence discovered after the proceedings, and seek release. A status board that cannot perform these functions is constitutionally inadequate.
The commission exceeded statutory limits because its procedures failed to establish jurisdictional facts adequately and denied the accused and counsel sufficient access to the evidence. Congress had authorized commissions only if they complied with the Constitution, federal law, and the laws of war.
…was not in the military service of the United States, but was held in custody by military authority for trial before a military commission upon charges founded upon the publication of articles alleged to be incendiary and libelous in a newspaper of which he was editor. The custody was alleged to be under the authority of…