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Military commissions have been established periodically during U.S. wars or conflicts. The Military Commissions Act of 2009 states that aliens who are “unprivileged enemy belligerents” may be tried by commissions. However, commissions also could conceivably be used to try a U.S. citizen: three Americans were prosecuted by the commissions set up by President Franklin D. Roosevelt during World War II. Commissions can be used to prosecute violations of the laws of war and a host of enumerated offenses, including providing material support for terrorism, aiding the enemy and spying. Established by President George W. Bush after 9/11, the commissions set up to fight al-Qaida have undergone several changes in response to U.S. Supreme Court decisions on detainee rights, as well as political opposition. Although these changes have moved the commission system in the direction of greater due process protections, there remain significant differences between the two systems.

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