Beginning in 2002, the U.S. military began detaining individuals at Guantanamo Bay, Cuba with the expectation that some of these individuals would be brought to trial by military commission. Since then, the ABA has repeatedly advocated for a fair process with basic minimum rights for detainees that will inspire public confidence in the administration of justice.

In November 2001, the President of the United States issued a military order addressing “Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism.” The order authorized trial, exclusively by military tribunal, or commission, of “individuals subject to this order.” However, in June 2006, the U.S. Supreme Court struck down the commissions established by the 2001 order. The Court held 5-3 that the structure and procedures of the administration’s military commissions, as convened to try Guantanamo prisoners such as the petitioner, Salim Ahmed Hamdan, violated both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. Hamdan v. Rumsfeld No. 05-184.

In the wake of the Supreme Court’s decision in Hamdan, Congress held a number of hearings considering how the new military commissions should be constituted. At that time, the ABA urged Congress to rely to the greatest extent possible on the respected and tested framework of the UCMJ and to fully comply with our international treaty obligations. The ABA also urged the Committees to be particularly sensitive to the need to preserve and protect the attorney-client privilege against any intrusion into communications between detainees and their lawyers.

Ultimately, Congress passed the Military Commissions Act (MCA) in October 2006, which established new military commissions. In 2007, the United States began charging individuals to face trial in the newly constituted commissions. The Defense Department has routinely invited the ABA to send an observer to Guantanamo Bay for the proceedings relating to the trials of several terrorism suspects before military commissions. Neal Sonnett, chair of the ABA Task Force on the Treatment of Enemy Combatants, has represented the Association at numerous times at preliminary proceedings held in Guantanamo Bay since September 2004.

• We must protect the rights afforded in the Constitution and the delicate balance of power the Constitution provides among the branches of government during times when it may seem popular or expedient to sidestep basic Constitutional values.


• Military tribunals should not be allowed to encroach on these values, which underlie our nation's power, our role in the world scheme, and our democratic way of life.


• The ABA recommendations seek to balance practical and legal concerns regarding trials of terrorist war criminals, and to preserve traditional core values of the American justice system.


• If the world is to deem these tribunals as "unbiased," and if these trials are to viewed as "full and fair," then the rules of procedure and evidence should comport with the principles and rules applied in court-martial conducted pursuant to the UCMJ and with basic international norms."


• The use of notice-and comment rulemaking procedures for military tribunals, while not compelled by current law, is in the public interest, will generate thoughtful and constructive comments from a variety of perspectives that will be helpful to the Defense Department, and will lead to improved public confidence in the result both in the U.S. and internationally.

In brief, the ABA has adopted policy (PDF) calling upon the President and Congress to assure that the law and regulations governing the use of military tribunals will not be applicable to U.S. citizens, lawful aliens, and other persons lawfully present in the United States; should only be applicable to cases involving violations of the laws of war, not violations of federal, state, or territorial laws; not permit indefinite pretrial detention of persons subject to the order; require that the procedures for trials and appeals be generally governed by the Uniform Code of Military Justice (UCMJ); and require that the procedures comply with Articles 14 and 15(1) of the International Covenant on Civil and Political Rights, including provisions regarding prompt notice of charges, representation by counsel of choice, confrontation and examination of witnesses, and an independent and impartial tribunal, with the proceedings open to the public.

The ABA has also adopted policy (PDF) that urges the Congress, in cooperation with the Executive Branch, to establish clear standards and procedures governing the detention and treatment of enemy combatants and to consider how national policy set by the U.S. may affect the response of other nations to future acts of terrorism.

The ABA adopted additional policy (PDF) in August 2003, relating to the conduct of military commission trials. In brief, the policy urges Congress and the Executive Branch to ensure that all defendants in any military commission trials have the opportunity to receive the zealous and effective assistance of civilian defense counsel.