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Military Commissions Act of 2009

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The Military Commissions Act of 2009 (Pub L. 111-84, 123 Stat. 2190) amended the Military Commissions Act of 2006. This act is entitled the "National Defense Authorization Act for Fiscal Year 2010." Both versions of this Act are reffered to as the "MCA."

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In the fall of 2006, Congress passed the Military Commissions Act of 2006, adding a new Chapter 47A to Title 10 of the U.S. Code. This Chapter created a system for the federal government to prosecute al Qaeda terrorists for their acts to ensure national security. The Military Commissions Act of 2009 (also known as "National Defense Authorization Act for Fiscal Year 2010") replaced that forum with a new military commissions systems. Section 1031 of Defense Authorization Act entirely strikes Chapter 47A and replaces it with a new statutory regime.[1]

Military Commissions Act of 2009

The Military Commissions Act of 2009 implemented several changes regarding the following:

  1. hearsay;
  2. the use of classified information; and
  3. statements allegedly obtained through cruel, inhumane, or degrading treatment.

The Defense Authorization Billl adopted a stricter test to permit the use of hearsay at trial.

Regarding the use of classified information, the bill afforded suspected al Qaeda terrorists the same rights as those accused U.S. service members subject to court martial. 

Although both versions of the MCA disallowed use of statements procured by cruel or inhuman treatment. However, the Act of 2009 broadens the scope to include all statements regardless of the date obtained.

The section disbanded the Court of Military Commission Review as the appellate court and redirected appellate proceedings to the U.S. Court of Appeals for the Armed Forces. This court served as the appellate forum for the Uniform Code of Military Justice courts-marital.

Additionally, the definition of an "unlawful enemy combatant" was supplanted with an "unprivileged enemy belligerent." An unprivileged enemy belligerent is defined as a person engaged in hostilities or someone who purposefully and materially supported hostilities against the United States or its allies.[2]


  1. http://rpc.senate.gov/public/_files/L19Section1031MilitaryCommissionsActofS1390DefenseAuth071409ms.pdf
  2. http://rpc.senate.gov/public/_files/L19Section1031MilitaryCommissionsActofS1390DefenseAuth071409ms.pdf

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