Military Commissions Act Amendments Head to Obama for Signature

This post has been corrected. Previously, the post was incorrectly based on an earlier version of the bill.

The Military Commissions Act amendments to the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647) were approved in Congress yesterday and are en route to the President for his signature. The full text of the bill is here.

Interestingly, despite the President’s statements and other indications that the Obama administration prefers Article III civilian federal courts to try terrorism cases, the new Military Commissions Act explicitly favors seems to favor trials in military commissions for “unprivileged enemy belligerents” (previously known as “enemy combatants”), who make up the bulk of detainees at Guantanamo Bay not yet cleared for release, by keeping the commissions’ jurisdiction over them broad. Attempts at narrowing who is subject to military commission jurisdiction failed.

Significantly, however, the final bill dropped an earlier provision, which explicitly stated that it is the “sense of Congress” that military commissions are “the preferred forum for the trial of alien unprivileged enemy belligerents”.

Here’s the provision:

Sec. 948e. Trial by military commission of alien unprivileged belligerents for violations of the law of war

(a) Sense of Congress- It is the sense of Congress that the preferred forum for the trial of alien unprivileged enemy belligerents subject to this chapter for violations of the law of war and other offenses made punishable by this chapter is trial by military commission under this chapter.

An “unprivileged enemy belligerent” is defined in the law as someone who: “(A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) is a member of al Qaeda.”

In other words, it’s a suspected terrorist. With its amendment to the Military Commissions Act, then, Congress has just directly contradicted the repeated statements of President Obama, Attorney General Eric Holder and the task force advising them, all of whom have stated that they prefer to try suspected terrorists in civilian courts wherever possible.