of November 13, 2001. The Supreme Court overturned a decision by the D.C. Military Commissions at Guantánamo Bay

The President's Military Order establishing military commissions to try suspected terrorists has been the focus of intense debate both at home and abroad. Critics argued that the tribunals could violate any rights the accused may have under the Constitution as well as their rights under international law, thereby undercutting the legitimacy of any verdicts rendered by the tribunals. The procedural rules released in March 2002 were praised as a significant improvement over what might have been permitted under the language of the M.O., but some continued to argue that the enhancements do not go far enough and that the checks and balances of a separate rule-making authority and an independent appellate process are necessary. The instructions set forth the elements of some crimes that may be tried by military commission, establish guidelines for civilian attorneys, and provide other administrative guidance and procedures for military commissions. The Supreme Court granted review and reversed. Further, the Court found that some of the rules provided in the Defense Department rules set forth in Military Commission Order No. 1 ("M.C.O. The Hamdan Court left open the possibility that the rules established by M.C.O. No. One of the perceived shortcomings of the M.O. No.1 addresses these issues in part. (Under the UCMJ, the trial record of a military commission would be forwarded to the appropriate JAG first.) The M.C.O. The M.O. ( S. 3901 , Proposed 10 U.S.C. 6054 , S. 3886 , and S. 3861 provide for the exclusion of the accused from portions of his trial in order to allow classified information to be presented to panel members but not disclosed to the accused. The following charts provide a comparison of the proposed military tribunals under the regulations issued by the Department of Defense, standard procedures for general courts-martial under the Manual for Courts-Martial, and military tribunals as proposed by H.R. Table 2 , which compares procedural safeguards incorporated in the DOD regulations and the UCMJ, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts , in order to facilitate comparison of the proposed legislation to safeguards provided in federal court, the international military tribunals that tried World War II crimes at Nuremberg and Tokyo, and contemporary ad hoc tribunals set up by the UN Security Council to try crimes associated with hostilities in the former Yugoslavia and Rwanda.
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 proceedings were suspended after a federal district court found one of the defendants could not be tried under the rules established by the Department of Defense. The D.C. Circuit Court of Appeals reversed that decision, Rumsfeld v. Hamdan, but the Supreme Court granted review and reversed the decision of the Court of Appeals. Military commissions will not be able to go forward until the Department of Defense revises its rules to conform with the Supreme Court's Hamdan opinion or Congress approves legislation conferring authority to promulgate rules that depart from the strictures of the Uniform Code of Military Justice (UCMJ) and U.S. international obligations.
The M.O. has been the focus of intense debate both at home and abroad. Critics argued that the tribunals could violate the rights of the accused under the Constitution as well as international law, thereby undercutting the legitimacy of any verdicts rendered by the tribunals. The Administration responded by publishing a series of military orders and instructions clarifying some of the details. The procedural aspects of the trials were published in Military Commission Order No. 1 ("M.C.O. No. 1"). The Department of Defense also released two more orders and nine "Military Commission Instructions," which set forth the elements of some crimes that may be tried, establish guidelines for civilian attorneys, and provide other administrative guidance. These rules were praised as a significant improvement over what might have been permitted under the M.O., but some argued that the enhancements do not go far enough, and the Supreme Court held that the amended rules did not comply with the UCMJ.
This report provides a background and analysis comparing military commissions as envisioned under M.C.O. No. 1 to general military courts-martial conducted under the UCMJ. A summary of the Hamdan case follows, in particular the shortcomings identified by the Supreme Court. The report provides an overview of legislation (H.R. 6054, S. 3901, S. 3930, S. 3861, and S. 3886). Finally, the report provides two charts to compare the regulations issued by the Department of Defense to standard procedures for general courts-martial under the Manual for Courts-Martial and to proposed legislation. The second chart, which compares procedural safeguards incorporated in the regulations with established procedures in courts-martial, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts, in order to facilitate comparison with safeguards provided in federal court and international criminal tribunals.