Obama endorses military commissions for Guantánamo detainees

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."

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Also in the defense legislation

Click here to read about a provision to pay Afghans to stop fighting.

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