Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

On November 13, 2001 U.S. President George W. Bush issued a Military Order entitled Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.

The order:

1. Defines which individuals the President considers subject to the order.
2. States that the Secretary of Defense will be ultimately responsible for the individuals.
3. Outlines the conditions under which the Secretary of Defense should detain the individuals.
4. Specifies that those individuals who were to be tried would be tried before military commissions, and sets out some broad guidelines for how those military commissions should be conducted.
5. Orders other agencies to assist the Secretary of Defense.
6. Grants the Secretary of Defense additional powers.
7. Sets out that the Secretary of Defense has almost unlimited authority over the individuals.
8. States that the order will be published in the Federal Register.

Controversy

Critics describe military commissions as, literally, unprecedented—that the officials implementing the commissions would be making up the rules as they went along. However, there is some precedence in US history of Ad Hoc military tribunals.

Critics pointed out that the military commissions lacked established rules of evidence.

Critics asked why the individuals couldn't be tried before courts martial or before the United States Federal courts. The justification offered by the executive branch was that the military commissions would save time.

When legal challenges had postponed the commissions for several years critics claimed that if the Bush administration had allowed the suspects to be tried before established courts of law the trials would have been finished years ago.

Judicial branch ruled the commissions unconstitutional

US District Court Justice James Robertson ruled, in Hamdan v. Rumsfeld, that the military commissions were unconstitutional. A three judge appeals panel overturned Robertson's ruling. President Bush appointed John Roberts, one of the judges on that panel, to the vacant post of Chief Justice of the United States on the next business day. Justice John Roberts had to recuse himself when the appeal appeared before the United States Supreme Court. On June 29, 2006 the Supreme Court upheld Robertson's initial ruling 5-3. That ruling was later superseded by the Military Commissions Act of 2006.