Guantanamo military commission
The Guantanamo military commissions were originally established by President George W. Bush through a military order on November 13, 2001, to try certain non-citizen terrorism suspects at the Guantanamo Bay prison. In 2006, the Supreme Court found that the military commissions, as they operated, were unconstitutional, and Congress responded by passing the Military Commissions Act of 2006. Military commissions are currently governed by the Military Commissions Act of 2009.
Thirty-two Guantanamo Bay detainees were charged between 2004 and. To date, there have been a total of eight convictions in the military commissions, six through plea agreements. Several of the eight convictions have been overturned in whole or in part on appeal by U.S. federal courts. There are five cases currently ongoing in the commissions and another two pending appeal, including United States v. Khalid Sheikh Mohammed, et al.—the prosecution of the detainees alleged to be most responsible for the September 11 attacks. None of those five cases has yet gone to trial.
History
As explained by the Congressional Research Service, the United States first used military commissions to try enemy belligerents accused of war crimes during the occupation in Mexico in 1847, made use of them in the Civil War and in the Philippine Insurrection, and then again in the aftermath of World War II. In Ex parte Quirin, 317 U.S. 1, the United States Supreme Court upheld the jurisdiction of a military tribunal over eight German saboteurs captured in the United States during World War II. Quirin has been cited as a precedent for the trial by military commission of unlawful combatants. For the next fifty years, however, the U.S. relied on its established federal court and military justice systems to prosecute alleged war crimes and terrorism offenses.On November 13, 2001, President Bush issued a military order governing the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". The order effectively established the military commissions at Guantanamo Bay, which began in February 2004 with charges against four Guantanamo detainees, although the infrastructure for the commissions was established in March 2002 and early-to-mid 2003 with the issuance of numerous Military Commission Orders and Military Commission Instructions.
In 2006, the US Supreme Court struck down the military commissions, determining that the commissions violated both the Uniform Code of Military Justice and the 1949 Geneva Conventions. In response, and in order to permit the commissions to go forward, Congress passed the Military Commissions Act of 2006. Congress significantly amended the MCA in 2009. In 2019, exercising authority granted to him under the MCA, the Secretary of Defense published an updated Manual for Military Commissions, which sets forth the current procedures that govern the commissions.
Costs
According to the United States Government Accountability Office, from fiscal years 2012 to 2018 the Department of Defense spent $679.6 million on the military commissions. Defense Department officials told GAO that the department plans to spend almost $1 billion more from fiscal year 2019 through at least fiscal year 2023.Commission cases and status
Of the 779 men detained at Guantanamo at some point since the prison opened on January 11, 2002, only 32 have been charged by military commissions. Charges were dismissed in 12 of those cases, and stayed in another. The U.S. government has procured eight convictions total, six of which were achieved through plea agreements. U.S. federal courts have overturned several of the eight convictions in whole or in part.There are five cases currently ongoing in the commissions—and another two pending appeal—including United States v. Khalid Sheikh Mohammed, et al.—the prosecution of the detainees alleged to be most responsible for the September 11, 2001, attacks. None of those five cases has yet gone to trial.
On July 9, 2021, Brig. Gen. Mark Martins – the chief prosecutor for the military commissions since March 2009 – announced his retirement. That same day, The New York Times reported that "General Martins submitted his retirement papers... after repeatedly butting heads with Biden administration lawyers over positions his office had taken on the applicable international law and the Convention Against Torture at the Guantánamo court, according to senior government officials with knowledge of the disputes."
Active cases and pending appeals
Closed, inactive, and dismissed cases
| Accused | Case status |
| Ahmed al Darbi repatriated | Pled guilty. Findings and sentence approved by the Convening Authority Transferred to Saudi Arabia per a pretrial agreement. |
| Majid Khan repatriated | Pled guilty. Transferred to Belize after serving his sentence. |
| Mohammed Hashim repatriated | Charges dismissed at direction of Convening Authority on May 20, 2009. Transferred to Afghanistan. |
| Ahmed Khalfan Ghailani serving sentence in federal prison | Charges dismissed at direction of Convening Authority on May 29, 2009. Prosecution transferred to federal court. Convicted of one count of conspiracy and sentenced to life imprisonment in federal prison. |
| Salim Hamdan repatriated | Convicted of Material Support for Terrorism. Transferred to Yemen after serving his sentence. Conviction vacated by Hamdan v. United States. |
| David Hicks repatriated | Pled guilty to all counts. Transferred to Australia after serving his sentence. Conviction vacated by the Court of Military commission Review pursuant to Al Bahlul v. United States. |
| Noor Muhammed repatriated | Pled guilty to all counts. Transferred to Sudan after serving his sentence. Charges subsequently dismissed by Convening Authority in light of Hamdan v. United States and Al Bahlul v. United States. |
| Mohammed Jawad repatriated | Transferred to Afghanistan after federal court granted his petition for habeas corpus during pretrial proceedings. |
| Fouad al Rabia repatriated | Transferred to Kuwait after federal court granted his petition for habeas corpus prior to trial. |
| Binyam Mohammed repatriated | Transferred to England after charges dismissed by Convening Authority. |
| Obaidullah repatriated | Charges dismissed at direction of Convening Authority on June 7, 2011. Transferred to Afghanistan. |
| Mohammed Kamin repatriated | Charges dismissed at direction of Convening Authority on December 3, 2009. Transferred to Afghanistan. |
| Tarek El Sawah repatriated | Charges dismissed at direction of Convening Authority on March 1, 2012. Transferred to Bosnia and Herzegovina. |
| Faiz al Kandari repatriated | Charges dismissed at direction of Convening Authority June 29, 2012. Transferred to Kuwait. |
| Ghassan al Sharbi | Charges dismissed at direction of Convening Authority on January 18, 2013. |
| Jabran al Qahtani repatriated | Charges dismissed at direction of Convening Authority on January 28, 2013. Transferred to Saudi Arabia. |
| Sufyian Barhoumi | Charges dismissed at direction of Convening Authority on January 28, 2013. |
| Abdul Ghani repatriated | Charges dismissed at direction of Convening Authority on December 19, 2008. Transferred to Afghanistan. |
| Abdul Zahir resettled | Charges stayed indefinitely by the Appointing Authority on June 10, 2006. Transferred to Oman. |
Public access limitations
The Department of Defense currently facilitates public access to the military commissions, and to information about military commission proceedings, in the following ways:- communicating directly with victims and their family members about hearings;
- enabling selected members of the public to view proceedings in-person;
- providing five sites in the United States to view proceedings remotely via closed circuit television ;
- making information such as court documents available on the Office of Military Commissions' website.