Michelle McCluer [Director, National Institute of Military Justice]: "Congress appears ready to enact changes to the 2006 Military Commissions Act [PDF file]. After the opening days of the Obama Administration, it feels strange to be writing about the future of military commissions, but it seems that military commissions will continue plodding along. While I would have preferred to have seen military commissions relegated to historical treatises, the current revisions proposed by Congress move the commissions in the right direction, albeit not as much as anticipated. Assuming the proposed legislation becomes law, here is a run-down of the changes and their impact on detainee prosecutions.
The expected-to-be-passed bill begins by tweaking the definition of those individuals eligible for trial before military commissions, notably deleting the Taliban and scrapping the phrase "unlawful enemy combatants." Whether the new definition of "unprivileged enemy combatants" will have much effect in practice remains to be seen. Many hoped that "voluntary" statements would become the standard for the admissibility of detainees' declarations. Unfortunately, the bill allows wiggle room for less-than-voluntary statements, which could result in the admission of statements obtained by coercive means. The good news is that the revised MCA is likely to have much more palatable rules against the admissibility of statements made as the result of cruel, inhuman, or degrading treatment than appeared in the original.
Perhaps the least controversial amendment to the MCA involves defense resources. Defense resources, or, more accurately, the lack thereof, was a key issue on which all involved in the commissions agreed, to some extent. The proposed legislation underscores that the defense should have access to resources "comparable" to those available in Article III courts and spells out increased discovery responsibilities for exculpatory evidence. Detainees in capital cases would not necessarily get "death-qualified" counsel, but there would be a push to ensure they had "learned" counsel. That's not exactly a confidence-inspiring qualification, considering the stakes.
One of the most fiercely opposed provisions to remain, despite the Administration's and many non-governmental organizations' objections, is the continued inclusion of "providing material support for terrorism" as a crime triable by the military commissions. I hope prosecutors will exercise their discretion and find it unwise to charge this offense in a war crimes tribunal.
Inexplicably, Congress rejected a proposed amendment which would send military commission appeals to the Article I Court of Appeals for the Armed Forces – the nation's highest military court – which, not surprisingly, specializes in cases arising out of the military justice system. Instead, lawmakers chose to keep the recently created, and largely untested, Court of Military Commission Review as the first level of appeals for the detainee cases, with the Article III US Court of Appeals for the District of Columbia Circuit providing the second appellate tier, and then the US Supreme Court as the final arbiter. Ironically, detainees will get more appellate rights than do those service members fighting around the globe.
Soon we'll know whether this latest attempt at getting the commission process right succeeds. I'm not overly optimistic."
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