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In response to the Hamdan decision, Congress enacted the Military Commissions Act of 2006 ("MCA") to grant the President express authority to convene military commissions to prosecute those fitting the definition under the MCA of "alien unlawful enemy combatants." The MCA eliminates the requirement for military commissions to conform to either of the two uniformity requirements in article 36, UCMJ. Instead, it establishes a new chapter 47A in title 10, U.S. Code and excepts military commissions under the new chapter from the requirements in article 36. (32) It provides that the UCMJ "does not, by its terms, apply to trial by military commissions except as specifically provided in this chapter." While declaring that the new chapter is "based upon the procedures for trial by general courts-martial under [the UCMJ]," it establishes that "[t]he judicial construction and application of [the UCMJ] are not binding on military commissions established under this chapter." (33) It expressly exempts the new military commission from UCMJ articles 10 (speedy trial), 31 (self-incrimination warnings) and 32 (pretrial investigations), and amends articles 21, 28, 48, 50(a), 104, and 106 of the UCMJ to except military commissions under the new chapter. (34) Other provisions of the UCMJ are to apply to trial by military commissions under the new chapter only to the extent provided therein. (35)
The President's M.O. was initially criticized by some as overly broad in its assertion of jurisdiction, because it could be interpreted to cover non-citizens who had no connection with Al Qaeda or the terrorist attacks of September 11, 2001, as well as offenders or offenses not triable by military commission pursuant to statute or the law of war. (36) A person subject to the M.O. was amenable to detention and possible trial by military tribunal for violations of the law of war and "other applicable law." (37) M.C.O. No. 1 established that commissions may be convened to try aliens designated by the President as subject to the M.O., whether captured overseas or on U.S. territory, for violations of the law of war and "all other offenses triable by military commissions." The MCA largely validates the President's jurisdictional scheme for military commissions.
Personal Jurisdiction. While many observers agreed that the President is authorized by statute to convene military commissions in the "Global War on Terrorism," some believed the President's constitutional and statutory authority to establish such tribunals does not extend beyond Congress' authorization to use armed force in response to the attacks. (38) Under a literal interpretation of the M.O., however, the President could designate as subject to the order any non-citizen he believed had ever engaged in any activity related to international terrorism, no matter when or where these acts took place.
The M.O. was not cited for the authority to detain; instead, the Department of Defense asserted its authority to be grounded in the law of war, which permits belligerents to kill or capture and detain enemy combatants. The Department of Defense defined "enemy combatant" to mean "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners," including "any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces." (39)
The MCA applies a somewhat broader definition for "unlawful enemy combatant," which includes
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. (40)
Thus, persons who do not directly participate in hostilities, but "purposefully and materially" support hostilities, are subject to treatment as an "unlawful enemy combatant" under the MCA. Citizens who fit the definition of "unlawful enemy combatant" are not amenable to trial by military commission under the MCA, but may be subject to detention.
The MCA does not define "hostilities" or explain what conduct amounts to "supporting hostilities." To the extent that the jurisdiction is interpreted to include conduct that falls outside the accepted definition of participation in an armed conflict, the MCA might run afoul of the courts' historical aversion to trying civilians before military tribunal when other courts are available. (41) It is unclear whether this principle would apply to aliens captured and detained overseas, but the MCA does not appear to exempt from military jurisdiction permanent resident aliens captured in the United States who might otherwise meet the definition of "unlawful enemy combatant." It is generally accepted that aliens within the United States are entitled to the same protections in criminal trials that apply to U.S. citizens. Therefore, to subject persons to trial by military commission who do not meet the exception carved out by the Supreme Court in ex parte Quirin (42) for unlawful belligerents, to the extent such persons enjoy constitutional protections, would likely raise significant constitutional questions.
The MCA did not specifically identify who makes the determination that defendants meet the definition of "unlawful enemy combatant." The government sought to establish jurisdiction based on the determinations of Combatant Status Review Tribunals (CSRTs), set up by the Pentagon to determine the status of detainees using procedures similar to those the Army uses to determine POW status during traditional wars. (43) The CSRTs, however, are not empowered to determine whether the enemy combatants are unlawful or lawful, which recently led two military commission judges to hold that CSRT determinations are inadequate to form the basis for the jurisdiction of military commissions. (44) One of the judges determined that the military commission itself is not competent to make the determination, while the other judge appears to have determined that the government's allegations did not set forth sufficient facts to conclude that the defendant, Salim Hamdan, was an unlawful enemy combatant. (45) The Court of Military Commission Review (CMCR) reversed the dismissal in the first case. (46) While it agreed that the CSRT determinations are insufficient by themselves to establish jurisdiction, it found the military judge erred in declaring that the status determination had to be made by a competent tribunal other than the military commission itself.
In denying the government's request to find that CSRT determinations are sufficient to establish jurisdiction over the accused, the CMCR interpreted the MCA to require more than establishing membership in Al Qaeda or the Taliban. The CMCR found
no support for [the government's] claim that Congress, through the M.C.A., created a "comprehensive system" which sought to embrace and adopt all prior C.S.R.T. determinations that resulted in "enemy combatant" status assignments, and summarily turn those designations into findings that persons so labeled could also properly be considered "unlawful enemy combatants." Similarly, we find no support for [the government's] position regarding the parenthetical language contained in [section] 948a(1)(A)(i) of the M.C.A.--"including a person who is part of the Taliban, al Qaeda, or associated forces." We do not read this language as declaring that a member of the Taliban, al Qaeda, or associated forces is per se an "unlawful enemy combatant" for purposes of exercising criminal jurisdiction before a military commission. We read the parenthetical comment as simply elaborating upon the sentence immediately preceding it. That is, that a member of the Taliban, al Qaeda, or associated forces who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents will also qualify as an "unlawful enemy combatant" under the M.C.A. (emphasis added [by the court]). (47)
The CMCR further explained that executive branch memoranda defining "enemy combatant" status were implemented solely for purposes of continued detention of personnel captured during hostilities and applicability of the Geneva Conventions. By contrast,
Congress in the M.C.A. was carefully and deliberately defining status for the express purpose of specifying the in personam criminal jurisdiction of military commission trials. In defining what was clearly intended to be limited jurisdiction, Congress also prescribed serious criminal sanctions for those members of this select group who were ultimately convicted by military commissions. (48)
Further, because detainees could not have known when their CSRT reviews were taking place that the determination could subject them to the jurisdiction of a military commission, the CMCR suggested that the use of CSRT determinations to establish jurisdiction would undermine Congress's intent that military commissions operate as "regularly constituted court[s], affording all the necessary 'judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of Common Article 3 of the Geneva Conventions." (49)
As a consequence of the decision, the Department of Defense will not have to institute new status tribunals, but the prosecution has the burden of proving jurisdiction over each person charged for trial by a military commission.
Subject-Matter Jurisdiction. The MCA provides jurisdiction to military commissions over "any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant...." (50) Crimes to be triable by military commission are defined in subchapter VII (10 U.S.C. [section][section] 950p-950w). Offenses include the following: murder of protected persons; attacking civilians, civilian objects, or protected property; pillaging; denying quarter; taking hostages; …