Written by attorneys · grounded in primary & secondary sources — see below
A tribunal modeled after a court-martial that tries individuals for violations of the laws of war and martial law offenses. The tribunal may consist of military officers or a mix of civilians and officers. Its procedures must comply with congressional authorization, the Constitution, federal statutes, and the laws and rules of war.
Sources & Authorities
How it applies
Common Examples
6
Detainee Challenges Commission Substitute
Michael Miller, an alien detained as an enemy combatant, faces trial before a military commission. He petitions for habeas corpus, arguing that the commission's review process bars him from introducing newly discovered exculpatory evidence and from contesting the factual basis for his indefinite detention. The court grants relief because the substitute procedure fails to provide a meaningful opportunity to challenge the President's detention authority or seek release.
Executive Order Exceeds Statutory Limits
Marcus Mitchell, a detained foreign national, is brought before a military commission established by executive order. The commission skips any determination of an armed conflict or Mitchell's enemy status and withholds key evidence from Mitchell and his counsel. A federal court enjoins the proceedings because the order departs from the congressional requirement that commissions comply with federal law and the laws of war.
Select any source to read its text and confirm it supports the definition.
Cases
Casebooks
Hornbooks
Dictionaries
Civilian Tried by Commission
Maurice Marshall, a U.S. civilian nurse, is accused of sabotaging quarantine protocols during a bioterror incident. The President orders a military commission to try him even though the local federal courthouse remains open and functional. A court invalidates the commission because civilians must be tried in Article III courts when civilian forums are available.
Habeas Appeal from Commission
Melanie Morris, held by military authority for trial before a commission on charges of publishing incendiary articles, seeks habeas relief. Congress has enacted a statute limiting appellate jurisdiction over such petitions. The Supreme Court dismisses the appeal after Congress withdraws jurisdiction, leaving Morris subject to the commission's process.
Ex parte McCardle74 U.S. 506 (1868)
Civilian Dependent Tried Abroad
Miles Montgomery, a civilian dependent of a U.S. service member stationed overseas, is charged with murder before a military commission. The commission proceeds under an executive agreement that dispenses with jury trial protections. The Supreme Court holds that the commission lacks authority because the Constitution's jury guarantees apply to U.S. civilians tried abroad.
Reid v. Covert354 U.S. 1 (1957)
Citizen Detainee Seeks Hearing
Miguel Mendoza, a U.S. citizen seized in the United States and designated an enemy combatant, is held for possible trial by military commission. The government provides only classified briefings to legislators and no individual hearing. A court orders that Mendoza receive a meaningful opportunity before a neutral decisionmaker to contest the factual basis for his detention.
Hamdi v. Rumsfeld542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004)
Common questions
Frequently Asked
3
When may a federal court invalidate a military commission created by executive order?+
A court may invalidate the commission when the executive order exceeds the limits set by Congress. The authorizing statute permits commissions only if they comply with the Constitution, federal law, and the laws and rules of war. Failure to establish jurisdictional facts adequately or denial of sufficient access to evidence by the accused and counsel renders the commission unlawful.
What must a substitute for habeas corpus provide to an alien detained as an enemy combatant?+
The substitute must allow the detainee to challenge the President's authority to detain indefinitely, contest the military commission's fact-finding, introduce exculpatory evidence discovered after the proceedings, and seek release. A paper review that bars counsel, live testimony, or new evidence fails this standard.
May the President try a U.S. civilian by military commission when civilian courts remain open?+
No. The Constitution limits military tribunals to situations where civilian courts are closed or unable to function. A civilian nurse accused of sabotage during a bioterror attack must be tried in an Article III court when the local federal courthouse continues to operate on a limited but functional schedule.
384 U.S. 436 (1966)Evidence
…can result in denial of removal of one's case from state to federal court, Maryland v. Soper , 270 U. S. 9; in refusal of a military commission, Orloff v. Willoughby , 345 U. S. 83; in denial of a discharge in bankruptcy, Kaufman v. Hurwitz , 176 F. 2d 210; and in numerous other adverse consequences. See 8 Wigmore, Evidence §…