An Indelicate Imbalance: A Critical Comparison of the Rules and Procedures for Military Commissions and Courts-Martial

58 Pages Posted: 12 Jul 2012

See all articles by David Frakt

David Frakt

US Air Force JAG Corps Reserve

Date Written: May 2008


After the Supreme Court invalidated President Bush's original attempt to create military commissions to try alleged terrorists, Congress outlined the basic rules and procedures for a new set of military commissions to try detainees in the Military Commissions Act (M.C.A.), leaving the details of implementation to the Secretary of Defense. The military commissions devised by Congress and the Defense Department are based on the pre-trial, trial, and post-trial rules and procedures for general courts-martial, but there are significant differences. Some of these differences were mandated by the M.C.A., and others are the result of the implementing rules and regulations crafted by the Secretary of Defense in consultation with the Attorney General. With the procedures set forth in the Manual for Military Commissions, the Secretary claims to have struck “a delicate balance” between the rights of the accused, on the one hand, and the requirements of military and intelligence activities, especially the need to protect classified information, on the other.

This article evaluates the Secretary's claim by reviewing the procedural differences between military commissions and general courts-martial. This article also addresses several questions. Do the differences satisfy the concerns raised by the Supreme Court in Hamdan v. Rumsfeld that the original military commissions procedures violated U.S. statutory law, the U.S. Constitution, and the Geneva Conventions? To the extent the differences were created by the implementing regulations, are those regulations con-sistent with the M.C.A. directive to minimize distinctions between military commission and general court-martial procedures? Are the differences justified by practical military and intelligence considera-tions? Viewing them in their totality, do the military commissions still provide a fair, reasonable, and legitimate forum to try suspected war criminals and terrorists?

This article concludes that the M.C.A. and its implementing regulations fail to strike an appropriate balance between military and intelligence considerations and fairness to the accused, and that military commissions may not qualify as “regularly constituted courts” within the meaning of the Geneva Con-ventions. This article recommends changes to the M.C.A. and its implementing regulations which would enhance fairness, decrease the likelihood of successful court challenges, and create greater legitimacy for military commissions with regard to both domestic and international principles of justice. Finally, this article considers possible bases for court challenges against the M.C.A. and its implementing regulations.

Keywords: Military Commissions Act, military commissions, MCA, guantanamo, Manual for Military Commissions

Suggested Citation

Frakt, David, An Indelicate Imbalance: A Critical Comparison of the Rules and Procedures for Military Commissions and Courts-Martial (May 2008). American Journal of Criminal Law, Vol. 34, No. 315, 2007, Available at SSRN:

David Frakt (Contact Author)

US Air Force JAG Corps Reserve ( email )

United States

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