United States Court of Military Commission Review explained

Court Type:tribunal
Court Name:United States Court of Military Commission Review
Abbreviation:C.M.C.R.
Seal Size:150
Location:Washington, D.C.
Appeals To:District of Columbia Circuit
Appeals From:Guantanamo military commissions
Established:2006
Authority:Article I
Created By:Military Commissions Act of 2006
Composition:Presidential nomination
with Senate advice and consent
Chief:Lisa M. Schenck

The Military Commissions Act of 2006 mandated that rulings from the Guantanamo military commissions could be appealed to a Court of Military Commission Review, which would sit in Washington D.C.[1] [2] [3] [4]

In the event, the Review Court was not ready when it was first needed.[1] Peter Brownback and Keith J. Allred, the officers appointed to serve as Presiding Officers in the Military Commissions that charged Omar Khadr and Salim Ahmed Hamdan dismissed the charges against the two men because the Military Commissions Act only authorized the commissions to try "unlawful enemy combatants".[2] [5] [6] Khadr and Hamdan, like 570 other Guantanamo captives had merely been confirmed to be "enemy combatants".

The Court of Military Commission Review ruled that Presiding Officers were, themselves, authorized to rule whether suspects were "illegal enemy combatant".[7] [8] [9]

Current composition of the court

To be eligible for a seat on the Court of Military Commission Review, candidates must currently be serving as a judge on either the Army Court of Criminal Appeals, the Air Force Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, or be nominated by the President of the United States. In 2016, all judges on the court began receiving presidential appointments with Senate confirmations.[10]

JudgeMilitary
branch
Term of serviceAppointed by
ActiveChiefDeputy chief
34William B. Pollard IIICivilian2012–presentObama
52Lisa M. SchenckCivilian2019–present2022–presentTrump
55Natalie D. RichardsonAir Force2023–present2023–presentBiden
56LaJohnne A. MorrisArmy2023–presentBiden
57Michael C. HolifieldNavy2023–presentBiden
58Stuart T. KirkbyNavy2023–presentBiden
59Jennifer A. ParkerArmy2023–presentBiden

Former judges

JudgeMilitary
branch
Term of serviceAppointed by
ActiveChiefDeputy chief
1Griffin BellCivilian2004–20072004–2007Rumsfeld
2Edward G. Biester Jr.Civilian2004–2007Rumsfeld
3William Thaddeus Coleman Jr.Civilian2004–2009Rumsfeld
4Frank J. WilliamsCivilian2004–20092007–2009Rumsfeld
5Amy Bechtold[11] Air Force2007–?Gates
6John FelthamMarine Corps2007–?Gates
7David R. FrancisAir Force2007–?Gates
8Eric E. GeiserNavy2007–?Gates
9Paul P. Holden Jr.Army2007–?Gates
10Daniel E. O'Toole[12] Navy2007–20112009–2011Gates
11John RolphNavy2007–20082007–2008Gates
12Lisa M. SchenckArmy2007–2008Gates
13Dawn ScholzAir Force2007–?Gates
14Annamary SullivanArmy2007–?Gates
15Steven ThompsonAir Force2007–?Gates
16Steven WalburnArmy2007–?Gates
17Barbara G. Brand[13] Air Force2008–2011Gates
18David Conn[14] Army2008–2012/2013Gates
19Eric C. Price[15] Navy2008–2013/20142012–2013/2014Gates
20Cheryl H. ThompsonAir Force2008–2011Gates
21John B. HoffmanArmy2010–2011Gates
22Martin L. SimsArmy2010–2012/2013Gates
23Theresa A. GallagherArmy2010–2013/2014Gates
24Joseph R. PerlakMarine Corps2010–2012/2013Gates
25Ronald A. GregoryAir Force2011–2013/2014Gates
26William E. Orr Jr.Air Force2011–2011/2012Gates
27J. Bradley RoanAir Force2012–2013/2014Panetta
28Jan E. AldykiewiczArmy2012–2013/2014Panetta
29Eric Krauss[16] Army2012–20152014–2015Panetta
30Mary E. HarneyAir Force2012–2013/2014Panetta
31Moira ModzelewskiNavy2012–2013/2014Panetta
32R. Quincy Ward[17] Marine Corps2012–2014Panetta
33Scott SillimanCivilian2012–20232014–2023Obama
35Jeremy S. WeberAir Force2014–2015Hagel
36Kurt J. Brubaker[18] Marine Corps2014–2016Hagel
37Thomas D. Cook[19] Army2014–2016Hagel
38Mark TellitocciArmy2014–2015Hagel
39Donald C. KingNavy2014–2016Hagel, Obama
40Martin T. MitchellAir Force2014–2016Hagel, Obama
41Mark L. AllredAir Force2014–2016Hagel
42Paulette V. Burton[20] Army2015–20222017–2022Carter, Obama
43Larss G. Celtnieks[21] Army2015–2018Carter, Obama
44James W. Herring Jr.Army2015–2018Carter, Obama
45Frank D. Hutchison[22] Navy2018–2019Trump
46Marcus N. FultonNavy2018–2019Trump
47Jan E. AldykiewiczArmy2019–2022Trump
48Michael A. LewisAir Force2019–2022Trump
49Tom Posch[23] Air Force2019–2023Trump
50Angela Tang[24] Navy2019–2021Trump
51Paula SchasbergerArmy2019–2021Trump
53James E. Key IIIAir Force2021–2023Trump
54John J. StephensMarine Corps2021–2023Trump

Julie Huygen (2019) and Luis O. Rodriguez (2020) were also confirmed by the Senate as judges of USCMCR, but did apparently not assume their positions.[25] [26]

United States v. Mohammed Jawad

Stephen R. Henley the Presiding Officer in United States v. Mohamed Jawad had ruled that evidence that was the result of torture could not be used.[27] On February 9, 2009, three judges from the Court, Frank J. Williams, Dan O'Toole, and D. Francis were empaneled to consider whether they should comply with the President's Executive Order halting all their proceedings.[28]

Suspension

On January 22, 2009, President Obama issued Executive Order 13492 ordering the closure of the Guantanamo Bay detention camps, within one year.[29] That order temporarily suspended all proceedings before the Court of Military Commission Review. Congress later blocked the closure of the camp.

Appeal of the verdict of Ali Al Bahlul's military commission

Carol Rosenberg, writing in the Miami Herald, reported that Ali Al Bahlul's military defense attorneys filed a fifty-page appeal of his sentence on free speech grounds on September 2, 2009.[30] [31] They claimed his production of al Qaeda propaganda material was protected by the first amendment of the United States Constitution.

Three of the Court's judges assembled on January 26, 2010, to hear oral arguments.[32] Following that, the CMCR determined to proceed with the case en banc and held a hearing on March 16, 2011.[33] The CMCR issued an opinion on September 9, 2011, that upheld al Bahlul's conviction.[34]

Salim Hamdan's appeal

Attorneys working on behalf of Salim Hamdan have appealed his conviction, and oral arguments were heard on January 26, 2010.[32] Hamdan has already finished serving his sentence.

Replacement proposal

Carol Rosenberg, writing in the Miami Herald, reported that the Obama administration had proposed a change in where appeals of the rulings and verdicts of military commissions would be heard.[30] The proposed changes would have had them first heard by the United States Court of Appeals for the Armed Forces, which Rosenberg noted was an experienced, respected 58-year-old institution. Under the current rules of the court, there is no appeal to rulings of the Court of Military Commission Review; under the proposed changes, appeals could ultimately have been taken to the United States Supreme Court.

Notes and References

  1. News: Growing Pains for Terror Appeals Court. Matt Apuzzo. Matt Apuzzo. Washington Post. August 22, 2007. August 22, 2007.
  2. News: Navy Judges Lend Expertise to the Court of Military Commission Review . Jason Jones . September 11, 2008 . dead . https://www.webcitation.org/5c27uHqhK?url=http://www.jag.navy.mil/JAGMAG/Winter_Navy%20Judges%20Lend%20Expertise%20to%20the%20Court%20of%20Military%20Commission%20Review.pdf . November 2, 2008.
  3. News: Military Commission Review Panel Takes Oath of Office . . September 22, 2004 . November 2, 2008 . bot: unknown . https://web.archive.org/web/20081023120601/http://www.defenselink.mil/news/newsarticle.aspx?id=25238 . October 23, 2008 .
  4. News: Q&A: Guantanamo detentions. January 22, 2009. BBC News. May 30, 2009.
  5. News: Charges Dismissed Against Canadian at Guantanamo. Sergeant. Sergeant. Department of Defense. June 4, 2007. June 7, 2007.
  6. News: Judge Dismisses Charges Against Second Guantanamo Detainee. Sergeant. Sergeant. Department of Defense. June 4, 2007. June 7, 2007.
  7. News: White House Defends US Terror Tribunals. August 24, 2007. Matt Apuzzo. Washington Post. May 30, 2009.
  8. News: A new court for Gitmo . August 25, 2007 . . https://web.archive.org/web/20071029010007/http://www.courtartist.com/2007/08/a-new-court-for.html . October 29, 2007 . dead.
  9. News: Factsheet: Military Commissions . . https://web.archive.org/web/20090527233451/http://ccrjustice.org/learn-more/faqs/factsheet%3A-military-commissions . May 27, 2009 . dead.
  10. Web site: U.S. Court of Military Commission Review (USCMCR) History. U.S. Court of Military Commission Review. September 17, 2022. September 20, 2022. https://web.archive.org/web/20220920211942/https://www.mc.mil/ABOUTUS/USCMCRHistory.aspx. dead.
  11. Web site: Action Memo. Department of Defense. May 4, 2007.
  12. Web site: Judges U.S. Court of Military Commission Review. U.S. Court of Military Commission Review. March 1, 2011. September 17, 2022. December 22, 2016. https://web.archive.org/web/20161222034044/http://www.mc.mil/Portals/0/Judges%20Assigned%20to%20USCMCR%20as%20of%20March%201,%202011.pdf. dead.
  13. Web site: Judges U.S. Court of Military Commission Review. U.S. Court of Military Commission Review. October 11, 2011.
  14. Web site: Judges U.S. Court of Military Commission Review. U.S. Court of Military Commission Review. May 4, 2012.
  15. Web site: Judges U.S. Court of Military Commission Review . U.S. Court of Military Commission Review . November 1, 2012 . https://web.archive.org/web/20130724203303/http://www.mc.mil/ABOUTUS/USCMCRJudges.aspx . 24 July 2013 . dead.
  16. Web site: Judges U.S. Court of Military Commission Review . U.S. Court of Military Commission Review . February 25, 2015 . https://web.archive.org/web/20150225125656/http://www.mc.mil/ABOUTUS/USCMCRJudges.aspx . 25 February 2015 . dead.
  17. Web site: Judges U.S. Court of Military Commission Review . U.S. Court of Military Commission Review . October 20, 2014 . https://web.archive.org/web/20141020150030/http://www.mc.mil/ABOUTUS/USCMCRJudges.aspx . 20 October 2014 . dead.
  18. Web site: Judges U.S. Court of Military Commission Review . U.S. Court of Military Commission Review . May 27, 2016 . https://web.archive.org/web/20160527031004/http://www.mc.mil/ABOUTUS/USCMCRJudges.aspx . 27 May 2016 . dead.
  19. Web site: Judges U.S. Court of Military Commission Review . U.S. Court of Military Commission Review . January 16, 2016 . https://web.archive.org/web/20160116232613/http://www.mc.mil/ABOUTUS/USCMCRJudges.aspx . 16 January 2016 . dead.
  20. Web site: Judges U.S. Court of Military Commission Review . U.S. Court of Military Commission Review . January 20, 2022 . https://web.archive.org/web/20220120183357/https://www.mc.mil/ABOUTUS/USCMCRJudges.aspx . 20 January 2022 . dead.
  21. Web site: Judges U.S. Court of Military Commission Review . U.S. Court of Military Commission Review . September 1, 2018 . https://web.archive.org/web/20180901002559/http://www.mc.mil:80/ABOUTUS/USCMCRJudges.aspx . 1 September 2018 . dead.
  22. Web site: Judges U.S. Court of Military Commission Review . U.S. Court of Military Commission Review . May 6, 2019 . https://web.archive.org/web/20190506140302/http://www.mc.mil:80/ABOUTUS/USCMCRJudges.aspx . 6 May 2019 . dead.
  23. Web site: Judges U.S. Court of Military Commission Review . U.S. Court of Military Commission Review . April 2, 2022 . https://web.archive.org/web/20220402112933/https://www.mc.mil/ABOUTUS/USCMCRJudges.aspx . 2 April 2022 . dead.
  24. Web site: Judges U.S. Court of Military Commission Review . U.S. Court of Military Commission Review . February 28, 2021 . https://web.archive.org/web/20210228130830/https://www.mc.mil/ABOUTUS/USCMCRJudges.aspx . 28 February 2021 . dead.
  25. Web site: PN500 — Air Force. U.S. Congress. March 28, 2019.
  26. Web site: PN2166 — Luis O. Rodriguez — Army. U.S. Congress. September 30, 2020.
  27. News: U.S. court hears arguments over young detainee's confession. January 13, 2009. CBC News. May 30, 2009.
  28. Web site: UNITED STATES COURT OF MILITARY COMMISSION REVIEW Before F. Williams, D. Francis, and D. O'Toole . February 9, 2009 . . https://web.archive.org/web/20090404145350/http://www.scotusblog.com/wp/wp-content/uploads/2009/02/cmcr-stay-order-2-4-09.pdf . April 4, 2009 . dead.
  29. News: EXECUTIVE ORDER – REVIEW AND DISPOSITION OF INDIVIDUALS DETAINED AT THE GUANTÁNAMO BAY NAVAL BASE AND CLOSURE OF DETENTION FACILITIES . January 22, 2009 . . May 30, 2009 . dead . https://web.archive.org/web/20090130015955/http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities/ . January 30, 2009.
  30. News: Bin Laden aide's Gitmo conviction appealed . September 2, 2009 . Carol Rosenberg . Carol Rosenberg . . https://archive.today/20090902215755/http://www.miamiherald.com/news/nation/story/1214739.html . September 2, 2009 . dead.
  31. News: Brief on behalf of appellant: CMCR Case no. 09-001 . September 1, 2009 . Michel Paradis . Todd E. Pierce . Katherine Doxakis . Scott Medlyn . . https://web.archive.org/web/20101103172306/http://media.miamiherald.com/smedia/2009/09/02/14/United_States_v._al_Bahlul_-_Brief_for_Appellant__1_September_2009_.source.prod_affiliate.56.pdf . November 3, 2010 . dead.
  32. Web site: US Military Panel Hears 1st Guantanamo Appeal. Voice of America. January 26, 2010. January 26, 2010.
  33. News: Summary of Arguments in the Government's Briefs in al-Bahlul and Hamdan . . March 16, 2011 . October 21, 2011 . April 23, 2012 . https://web.archive.org/web/20120423191621/http://www.lawfareblog.com/2011/03/summary-of-arguments-in-the-governments-briefs-in-al-bahlul-and-hamdan/ . live .
  34. News: Panel upholds Al Qaida filmmaker's life sentence . . September 10, 2011 . October 21, 2011.