In signing the National Defense Authorization Act on Wednesday, President Obama has
personally endorsed yet another attempt by the US government to conduct military-commission trials of terror
suspects currently held at the Guantánamo detention camp.
Similar efforts have stalled with legal challenges and Supreme Court decisions. But
supporters say that the Military Commissions Act of 2009 balances the demands of fairness and due process against a real-world
need for flexibility when seeking to prosecute accused Al Qaeda leaders and supporters.
Critics say that the 2009 act is an improvement over prior versions of military-commission
regimes passed during the Bush administration. But they say it is still substandard, offering a second-class system of justice
designed to obtain quick convictions.
"While the new law addresses some of the defects of the military commissions, it fails
to bring the tribunals in line with the Constitution and the Geneva Conventions," said Jameel Jaffer, director of the American
Civil Liberties Union's National Security Project.
"The Obama administration has committed to closing the prison at Guantánamo, but closing
the prison will have little meaning if the administration leaves in place the policies that the prison has come to represent,"
he said.
With the signing of the legislation at the White House, defense officials now have
90 days to update rules and procedures for the commissions. At least a dozen suspected Al Qaeda members and leaders –
including self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed – are already slated for commission trials. The Obama
administration is expected to soon announce which other detainees will also face military justice through the revised commission
system.
The 2009 law retains the basic structure of the existing commissions. A military judge
presides over the trial, ruling on issues of law and evidence, and a panel of US
service members decides issues of fact and guilt or innocence. The panel can range from five members in lesser cases to at
least 12 in trials involving a potential death sentence. Under the law, the president must give his personal approval before
an execution may be carried out.
The new law excludes statements obtained through torture or through cruel, inhuman,
or degrading treatment. But Congress empowered the secretary of Defense to enact rules permitting admission of coerced statements
and hearsay evidence. These are departures from trial rights routinely provided to US
service members in courts-martial.
Under the new law, defendants have the right to attend their entire trial and examine
all evidence presented against them, to cross-examine witnesses against them, and to call their own witnesses. Defendants
may be excluded from a commission proceeding for being disruptive, but not to prevent them from being present during the presentation
of classified evidence.
Military prosecutors are required under the new law to disclose the existence of any
exculpatory evidence as well as any evidence that might impeach the credibility of a government witness.
The law permits appeals to the US Court of Military Commission Review, with further
appeals to the federal appeals court in Washington and ultimately to the US Supreme Court. It allows government prosecutors
to file appeals before or during the trial, but it limits a defendant's appeals until after the commission has concluded.
Congress granted the commission jurisdiction over 32 crimes. Many of them are standard
war crimes such as pillaging, denying quarter, taking hostages, torture, mutilation, and rape. But the new law also authorizes
military commissions to try individuals for conspiracy and providing material support for terrorism.
Critics say these are not war crimes. The conspiracy and material-support charges appear
designed, some say, to help the government win convictions in cases with weak evidence.
As part of the law, Congress urged Pentagon officials to make allowances for defendants
to receive good legal assistance. "The fairness and effectiveness of the military commission system ... will depend to a significant
degree on the adequacy of the defense counsel and associated resources for individuals accused, particularly in the case of
capital cases," the law reads in part. "Defense counsel in military commission cases, particularly in capital cases ..., should
be fully resourced."
Opponents of military commissions say that the federal court system in the United
States is robust enough to prosecute Al Qaeda suspects. "The Military Commissions Act of
2009 raises serious constitutional concerns," said Virginia Sloan, president of the Constitution Project.
"Although they are an improvement from the 2006 version, the reformed commissions still
fail to provide critical safeguards for the accused that are available in our traditional criminal justice system," she said.
"This lesser degree of process is not justice."
