Military Commissions

Military commissions are courts run by the military to try enemy combatants and others for violations of the laws of war, separate from courts-martial for service members. They were used in the Mexican War, the Civil War, and World War II, when the Supreme Court in Ex parte Quirin in 1942 upheld the trial of eight Nazi saboteurs. After the September 11 attacks, President George W. Bush ordered commissions for captured terrorism suspects and opened the detention camp at Guantanamo Bay, Cuba, in January 2002.

In Hamdan v. Rumsfeld, on June 29, 2006, the Supreme Court ruled that the first commissions violated military law and the Geneva Conventions because Congress had not authorized them. Congress passed the Military Commissions Act of 2006 and revised it in 2009 to add protections, such as limits on evidence obtained by coercion. In Boumediene v. Bush in 2008 the Court held that Guantanamo detainees can challenge their detention in federal court. About 780 men have been held there, and about 15 remained in 2025.

The commissions have produced only a handful of convictions, several overturned on appeal. The case against Khalid Sheikh Mohammed and others accused of planning 9/11 has been in pretrial hearings since 2012, slowed by disputes over evidence tainted by CIA torture. Plea deals that would have taken death sentences off the table were approved in July 2024 but withdrawn by the Secretary of Defense, a move an appeals court upheld in 2025, and the case still had not gone to trial in 2026. Critics say the system has failed victims and defendants alike, while supporters say federal courts are not suited to trying enemy fighters.