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.