The American Bar Association reported in January 2002:
"In response to the unprecedented attacks of September 11, on November 13, 2001, the President announced that certain non-citizens [of the USA] would be subject to detention and trial by military authorities. The [executive] order provides that non-citizens whom the President deems to be, or to have been, members of the al Qaeda organization or to have engaged in, aided or abetted, or conspired to commit acts of international terrorism that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States or its citizens, or to have knowingly harbored such individuals, are subject to detention by military authorities and trial before a military commission."
The United States Department of Defense (DOD) organized military tribunals to judge charges against enemy combatant detainees being held at Guantanamo Bay detention camp. In the early years, the camp authorities did not allow foreign detainees access to attorneys, or materials supporting their charges, and the executive branch declared them outside the reach of due process under habeas corpus. In Rasul v. Bush (2004), the US Supreme Court ruled that they did have rights to habeas corpus and had to be provided access to legal counsel and an opportunity to challenge their detention before an impartial tribunal.
On June 29, 2006, the Supreme Court had ruled in Hamdan v. Rumsfeld Docket 05-194, with a 5-3 decision for the detainee Salim Ahmed Hamdan. It effectively declared that trying Guantanamo Bay detainees under the existing Guantanamo military commission (known also as Military Tribunal) was illegal under US law, including the Geneva Conventions.
According to the opinion (Paragraph 4, page 4):
"4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ (Uniform Code of Military Justice) and the four Geneva Conventions signed in 1949."
and operate tribunals and is required to get authorization to do so from the United States Congress, as part of the separation of powers in the US government.
With the War Crimes Act in mind, this ruling presented the Bush administration with the risk of criminal liability for war crimes. To address these legal problems, the president requested and Congress passed the Military Commissions Act.
On September 28 and September 29, 2006, the US Senate and US House of Representatives, respectively, passed the Military Commissions Act of 2006, and President Bush signed it on October 17, 2006. The bill was controversial for continuing to authorize the President to designate certain people as "unlawful enemy combatants," thus making them subject to military commissions, and depriving them of habeas corpus.
In Boumediene v. Bush (2008), the US Supreme Court ruled that foreign detainees held by the United States, including those at Guantanamo Bay detention camp, did have the right of habeas corpus under the US constitution, as the US had sole authority at the Guantanamo Bay base. It held that the 2006 Military Commissions Act was an unconstitutional suspension of that right.
The United States has two parallel justice systems, with laws, statutes, precedents, rules of evidence, and paths for appeal. Under these justice systems, prisoners have certain rights. They have a right to know the evidence against them; they have a right to protect themselves against self-incrimination; they have a right to counsel; and they have a right to have the witnesses against them cross-examined.
The two parallel justice systems are the Judicial Branch of the U.S. Government, and a slightly streamlined justice system named the Uniform Code of Military Justice (UCMJ) for people under military jurisdiction. People undergoing a military court martial are entitled to the same basic rights as those in the civilian justice system.
The Guantanamo military trials under the 2006 MCA do not operate according to either system of justice. The differences include:Unlike civilian courts, only two-thirds of the jury needs to agree in order to convict someone under the military commission rules. This includes charges such as supporting terrorism, attempted murder, and murder.
The accused are not allowed access to all the evidence against them. The Presiding Officers are authorized to consider secret evidence which the accused have no opportunity to see or refute.
It may be possible for the commission to consider evidence that was extracted through coercive interrogation techniques before passage of the Detainee Treatment Act. But, legally, the commission is restricted from considering any evidence extracted by torture, as defined by the Department of Defense in 2006.
The proceedings may be closed at the discretion of the Presiding Officer, so that secret information may be discussed by the commission.
The accused are not permitted a free choice of attorneys, as they can use only military lawyers or those civilian attorneys eligible for the Secret security clearance.
Because the accused are charged as unlawful combatants (a certain category of people who are not classified as prisoners of war under the Geneva Conventions), then Secretary of Defense Donald Rumsfeld said in March 2002 that an acquittal on all charges by the commission is no guarantee of a release.
Note that international human rights law prohibits trying civilians in military tribunals. Adding to the fact that this "comparison" is misleading due to the fact that the United States has never ratified the International Criminal Court statute, and in fact it has withdrawn its original signature of accession when it feared repercussions of the Iraq War.
Much like the military commissions, the International Criminal Court (ICC) trial procedures call for:A majority of the three judges present, as triers of fact, may reach a decision, which must include a full and reasoned statement. However, and unlike the U.S. Military Commission, those are judges and not mere military officers. Additionally, the ICC statute requires the judges to be of a high level of competence in criminal law and the necessary relevant experience; or have established competence in relevant areas of international law such as international humanitarian law and the law of human rights and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court.
Trials are supposed to be public, but proceedings are often closed, and such exceptions to a public trial have not been enumerated in detail. Nonetheless, the ICC statute explicitly states that the principle is a public trial, and exceptions could be entertained by the judges if they provide sufficient grounding.
In camera proceedings are allowed for protection of witnesses or defendants as well as for confidential or sensitive evidence. However, the statute states that this is an exception to the principle of public hearings which the court applies in particular to victims of sexual violence and children who are victims or witnesses.
Hearsay and other indirect evidence is not explicitly prohibited in the statute, which adds flexibility to the proceedings due to the different legal traditions of the judges or of the applied law. But it has been argued the court is guided by hearsay exceptions which are prominent in common law systems,similar to the military commissions. Nonetheless, established rules of international law provides that admissibility of such evidence by guided by "hearsay exceptions generally recognized by some national legal systems, as well as the truthfulness, voluntariness and trustworthiness of the evidence."
In 2006, after charges were laid against a number of detainees a boycott against the judicial hearings was declared by Ali al-Bahlul. The boycott gained momentum in 2008 when more detainees faced Guantanamo military commissions. Public confidence in the fairness of the trials reached all-time lows after the boycotts began.
Initially the identity of the commission members were to be kept hidden, and the commission was to consist of a Presiding Officer (a lawyer), at least four other officers (between eight and eleven in capital cases), and one alternate.
The structure of the commission was radically revised in late 2004. The impartiality of five of the officers was challenged, and two of the officers were removed. All five officers of the commission have an equal vote.
There have been three individuals who have held the position of legal advisor to the civilian in charge of the Office of Military Commissions: Brigadier General Thomas Hemingway, Brigadier General Thomas W. Hartmann and Mr. Michael Chapman.
On January 2, 2008 Toronto Star reporter Michelle Shephard offered an account of the security precautions reporters go through before they can attend the hearings:Reporters were only allowed to bring in one pen;
Female reporters were frisked if they wore underwire bras;
Reporters were not allowed to bring in their traditional coil-ring notepads;
The bus bringing reporters to the hearing room is checked for explosives before it leaves;
200 metres from the hearing room reporters dismount, pass through metal detectors, and are sniffed by chemical detectors for signs of exposure to explosives;
Only eight reporters are allowed into the hearing room—the remainder watch over closed circuit TV;
On January 22, 2009, new US President Barack Obama, who had said during his 2008 campaign that he would reject the Military Commissions Act if elected, issued an executive order instructing the Secretary of Defense to immediately take steps sufficient to ensure that no new charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.
On January 29, 2009 the order was overturned. Guantanamo military commission judge, Army Colonel James Pohl, ruled against the order in the case of Abd al-Rahim al-Nashiri. Abd al-Rahim al-Nashiri is one of three Guantanamo Bay inmates known to have been subjected to enhanced interrogation techniques. In May 2009, The New York Times reported that the Obama administration considered the tribunals as an alternative to trying detainees in the regular court system.
On March 7, 2011, President Obama authorized further trials under military commissions for Guantanamo detainees. On the same day, he signed Executive Order 13567 authorizing the creation of Periodic Review Boards (PRB) to determine the fate of prisoners who will not be prosecuted in the commissions or in Federal Court. The Washington Post described this latter channel as "a formal system of indefinite detention." At the time, 48 of the 172 prisoners held at Guantanamo were expected to be overseen by the PRB, due to "evidentiary problems" with putting them on trial. The first such review was convened in July 2013.
According to Hindustan Times the electronic equipment that was installed in courtroom number 2 cost $4 million USD.