Military Tribunals List: Types, Rights, and Landmark Cases

Military tribunals in the United States are specialized courts that operate outside the civilian justice system, and they come in two distinct forms: courts-martial, which try members of the armed forces under the Uniform Code of Military Justice, and military commissions, which try foreign enemy combatants for violations of the law of war. The two draw on different constitutional authorities, follow different procedures, and reach different people. Courts-martial are a permanent fixture of military life. Commissions are temporary tribunals used during armed conflict, and in the modern era they have been used almost exclusively at Guantanamo Bay.

The Two Types of Military Tribunals

Courts-Martial

Courts-martial are the standing criminal justice system for the U.S. armed forces, created by Congress under its Article I power to “make Rules for the Government and Regulation of the land and naval Forces.”¹ They operate under the Uniform Code of Military Justice, codified at 10 U.S.C. Chapter 47.²

There are three tiers, matched to the seriousness of the offense:

A summary court-martial, run by a single commissioned officer, handles minor offenses. It cannot impose a dishonorable discharge or lengthy confinement.
A special court-martial seats a military judge with at least three members, or a judge alone if the accused requests it. It handles intermediate offenses and can impose up to one year of confinement.
A general court-martial seats a military judge with at least five members, or a judge alone at the accused’s request. It handles the most serious offenses and can impose any punishment the UCMJ allows, including life imprisonment and, for certain offenses, death.²

Military Commissions

Military commissions are a different kind of tribunal. They are temporary, created to try foreign combatants for war crimes, and they draw their authority from a combination of the President’s Article II role as Commander-in-Chief and specific congressional authorization.³ The current governing statute is the Military Commissions Act of 2009, codified at 10 U.S.C. Chapter 47A.⁴ Where courts-martial look inward to enforce discipline within the ranks, commissions look outward to prosecute people who were never part of the U.S. military.

Who Can Be Tried, and For What

Jurisdiction is the sharpest line between the two systems.

Courts-martial reach all active-duty service members, reservists on active training, and certain civilians who accompany the armed forces overseas. The offenses they handle run from strictly military conduct like desertion and disobeying a lawful order to crimes that would also be prosecuted in civilian court, including assault and theft.²

Military commissions reach much less far. Under the 2009 Act, only an “alien unprivileged enemy belligerent” may be tried. The statute defines that as a non-citizen who has engaged in or materially supported hostilities against the United States or its coalition partners, or who was part of al Qaeda at the time of the alleged offense.⁴ U.S. citizens cannot be tried by military commission. Neither can lawful combatants under the Geneva Conventions, such as uniformed soldiers of a recognized military.

The crimes a commission can hear are listed by statute and include terrorism, murder of protected persons, attacking civilians, torture, hostage-taking, spying, and conspiracy, among others.⁵

Rights of the Accused in a Military Commission

The 2009 Act gives defendants a set of protections that, while not identical to those in a civilian trial, are substantially stronger than earlier commission frameworks allowed. The accused has the right to be present at all sessions except deliberations, to present evidence, to cross-examine prosecution witnesses, and to see all evidence the government uses on guilt, innocence, and sentencing.⁶

Military defense counsel is appointed at no cost. The accused may also hire a civilian attorney at personal expense. In capital cases, the government must provide at least one additional attorney experienced in death-penalty law. The accused may waive counsel and represent themselves if they do so knowingly and competently.⁶

Other protections include the privilege against self-incrimination, a presumption of innocence, proof beyond a reasonable doubt, and the right to suppress evidence that is unreliable or whose prejudicial effect substantially outweighs its value. The 2009 Act also bars any statement obtained through torture or cruel treatment.

The Convening Authority

Every military commission is set in motion by a convening authority, a role filled by the Secretary of Defense or a designee.⁷ The convening authority selects the commission’s members, detailing officers best qualified by education, experience, and temperament, and may excuse them before or after the commission assembles.

The role is not purely administrative. After a verdict, the convening authority reviews the case and has sole discretion to approve, disapprove, commute, or suspend the sentence in whole or in part. The one hard limit: the convening authority cannot increase a sentence beyond what the commission imposed. To protect judicial independence, the statute also prohibits censuring, reprimanding, or admonishing the commission, its members, the judge, or counsel over the findings or sentence.⁷

Sentencing and the Death Penalty

Military commissions can impose a wide range of punishments. For the most serious offenses where death results, including murder of protected persons, terrorism, and conspiracy causing death, the maximum penalty is execution.⁵ For grave offenses where no one is killed, the commission can impose any sentence short of death.

A death sentence carries extra procedural requirements. No execution can take place until there is a final judgment on the legality of the entire proceeding, and the President personally must approve the sentence. The President can also commute, reduce, or suspend any death sentence.⁸ For sentences other than death, the Secretary of Defense or the convening authority can suspend execution.

Appeals from a Military Commission

A commission conviction does not become final when the convening authority signs off. The statute builds a layered review process.

The first stop is the United States Court of Military Commission Review (CMCR), a court of record composed of panels of at least three judges. Whenever a commission enters a finding of guilt, the convening authority refers the case to the CMCR, which can affirm, set aside, or modify the findings and sentence. If the court finds the evidence insufficient, it orders the charges dismissed; otherwise it can order a rehearing.⁹

From there, the case moves to the U.S. Court of Appeals for the D.C. Circuit, which has exclusive jurisdiction over final military commission judgments and reviews matters of law, including whether the evidence was sufficient.¹⁰ For any accused sentenced to death or ten or more years of imprisonment, D.C. Circuit review is available as of right. For lesser sentences, the court decides whether to take the case.¹¹ The Supreme Court can then grant certiorari in the usual way. That is the route Hamdan v. Rumsfeld traveled in 2006.

Cases That Shaped the System

Ex parte Milligan (1866)

The most important early limit on military tribunals came out of the Civil War. Lambdin Milligan, a civilian in Indiana, was tried and sentenced to death by a military commission for conspiring against the Union. Indiana was not a war zone, and its federal courts were open. In 1866, the Supreme Court ruled that military tribunals have no jurisdiction to try civilians when civilian courts are available, writing that “martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction.”¹² That principle remains a bedrock limit on military tribunal authority over American citizens.

Ex parte Quirin (1942)

During World War II, eight German saboteurs entered the United States with orders to attack war infrastructure. President Franklin Roosevelt ordered their trial by military commission rather than in civilian court. All eight were convicted and sentenced to death, though Roosevelt commuted two sentences to life imprisonment because those men had cooperated with authorities. The Supreme Court unanimously upheld the commission’s jurisdiction, holding that the saboteurs were unlawful enemy combatants who had violated the law of war and that Congress had authorized military commissions to try them.³ Quirin established that unlawful combatants, even those found on U.S. soil, can be tried by military commission.

Hamdan v. Rumsfeld (2006)

After September 11, 2001, President George W. Bush issued a military order authorizing commissions to try suspected terrorists detained at Guantanamo Bay. Salim Hamdan, a Yemeni national and alleged driver for Osama bin Laden, challenged the legality of those commissions. In June 2006, the Supreme Court ruled that the commissions violated both the UCMJ and the Geneva Conventions. The commissions as structured failed to provide adequate procedural protections, and the President had not received congressional authorization for the specific tribunal design he had implemented.³ Congress responded with the Military Commissions Act of 2006,¹³ then substantially revised the framework in 2009. Hamdan is the reason modern commissions exist in their current statutory form.

Khalid Sheikh Mohammed and the September 11 Case

The highest-profile commission case involves Khalid Sheikh Mohammed and four co-defendants accused of orchestrating the September 11 attacks. It has been mired in pretrial proceedings for more than a decade, with disputes centered on evidence obtained during the defendants’ time in CIA custody, where they were subjected to enhanced interrogation techniques including waterboarding. In mid-2024, three of the defendants, including Mohammed, reached plea agreements with prosecutors that would have resulted in life sentences rather than the death penalty. Defense Secretary Lloyd Austin revoked those deals, but a military judge ruled in late 2024 that the defense secretary lacked the authority to rescind them. As of early 2026, the case remains in pretrial proceedings and is one of the longest-running military commission prosecutions in U.S. history.

Only a small number of Guantanamo detainees have been convicted by military commission, and several of those convictions were later overturned on appeal, with courts finding that offenses like material support for terrorism and conspiracy did not qualify as traditional violations of the law of war triable by commission. The slow pace and legal setbacks have prompted ongoing debate about whether military commissions are an effective forum for terrorism prosecutions or whether federal civilian courts would produce faster and more durable results.

1
Legal Information Institute. U.S. Constitution Annotated – Article I, Section 8, Clauses 11-14 – The Power to Raise and Maintain Armed Forces
2
Office of the Law Revision Counsel. 10 USC Ch. 47 – Uniform Code of Military Justice
3
Legal Information Institute. U.S. Constitution Annotated – Article II, Section 2, Clause 1 – Military Commissions
4
Office of the Law Revision Counsel. 10 USC Chapter 47A, Subchapter I – General Provisions
5
Office of the Law Revision Counsel. 10 U.S. Code 950t – Crimes Triable by Military Commission
6
Office of the Law Revision Counsel. 10 USC 949a – Rules
7
Office of the Law Revision Counsel. 10 USC Chapter 47A – Military Commissions
8
Office of the Law Revision Counsel. 10 USC 950i – Execution of Sentence; Suspension of Sentence
9
Office of the Law Revision Counsel. 10 USC 950f – Review by United States Court of Military Commission Review
10
Office of the Law Revision Counsel. 10 U.S. Code 950g – Review by United States Court of Appeals for the District of Columbia Circuit
11
Justia U.S. Supreme Court Center. Hamdan v. Rumsfeld, 548 U.S. 557
12
Justia U.S. Supreme Court Center. Ex parte Milligan, 71 U.S. 2
13
U.S. Department of State. Department of State Fact Sheet on Military Commissions Act