Significant Changes to Bush-Era Military Commissions Signed Into Law

Thursday, 29 October 2009 12:00 By Yana Kunichoff, t r u t h o u t | Report | name.

Significant Changes to Bush-Era Military Commissions Signed Into Law
President Barack Obama signed a bill Wednesday that will change the way military commissions are structured. (Photo: mindgutter / flickr)

President Barack Obama signed a Defense Department spending bill into law Wednesday, which includes a provision that will change the way military commissions are structured.

Human rights organizations and legal advocacy groups believe these controversial Bush-Era commissions primarily deny defendants the protections that federal caourts provide and have responded with disappointment to their inclusion in defense legislation by a president who, during his presidential campaign, was quoted as saying he would "reject the Military Commissions Act."

The 2010 National Defense Authorization Act allocates $680 billion for the fiscal year of 2010 to increase military personnel and support the ongoing conflicts in Iraq and Afghanistan, with a move away from defense spending on conventional warfare tactics to funding for smaller wars. It also allows the Pentagon to increase its intelligence services that had been most recently contracted out to private businesses.

Though the bill has introduced some changes to military commissions: For the first time, experienced capital defense attorneys will be required in death penalty cases, more resources have been authorized for defense counsels and new limitations have been imposed on the use of hearsay and coerced testimony during trial; critics believe alterations will do little to limit an inherently unfair practice.

Jameel Jaffer, director of the American Civil Liberties Union National Security Project, called for the Obama administration to abandon the "fatally flawed" military commission system. "It will be a shame if the law that the president signed today gives new life to the military commissions. The Obama administration has committed to closing the prison at Guantanamo, but closing the prison will have little meaning if the administration leaves in place the policies that the prison has come to represent."

Under the Military Commissions Act of 2006, defendant were tried in courts which provided more relaxed rules of evidence, including hearsay, coerced evidence and secret evidence never shown to the defendant. None of this data is permitted in US federal civilian court, or in regular US military courts.

The new bill continues to allow for the conviction of people which the Constitution and the Geneva Conventions say should not be tried under a military commission. It also does not prohibit military commission trials of children, which may place minors in Guantanamo at risk.

According to Daphne Eviatar of the Washington Independent, hundreds of such cases have been tried and resulted in convictions in federal courts since 9/11, with eight years of military commissions resulting in three convictions.

President Obama originally ran on a campaign of criticism of the commissions, saying that "by any measure our system of trying detainees has been an enormous failure," and in one of his first acts as president ordered a 120-day suspension of the tribunals for his staff to review their procedures. These actions, coupled with Obama's campaign platform of "change," led many to believe he would take more decisive action.

Vincent Warren, executive director of the Center for Constitutional Rights, which has coordinated and organized more than 500 pro bono lawyers to represent Guantanamo inmates, said Wednesday that "these are now President Obama's military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason."

Yana Kunichoff

Yana Kunichoff is an assistant editor at Truthout.

Last modified on Thursday, 29 October 2009 12:24