Pentagon Proposes Amendments to the Military Commissions Act

Yesterday, the Miami Herald reported that the Pentagon sent proposed amendments to the Military Commissions Act to Congress. The Herald’s title—Sept. 11 Trial by Skype?—captures the heart of the proposal. Here is a summary of the proposed amendments and below is the document obtained by the Herald.

The amendments are an effort at efficiency in the commissions. The key provisions are:

• Amendment to 10 U.S.C. § 948l to allow the chief trial judge of the military commissions to detail an additional military judge to hear and rule on motions.
• Amendment to 10 U.S.C. §949b(a)(3) (section entitled “Unlawfully influencing action of military commission and United States Court of Military Commission Review”) to allow greater advice to trial counsel from supervisory government attorneys.
• Amendment to 10 U.S.C. § 949d to allow for videoconferencing appearance by the defendants, their attorneys, or any other necessary participants in proceedings that the military judge may call without the presence of the military commissions members (for instance, in pretrial motions proceedings).
• Amendment to 10 U.S.C. § 949a(b) to allow the Defense Secretary to promulgate procedures by which a case already referred to commission trial may be converted from a capital case to a non-capital case.

The proposal contains a section-by-section analysis by the Pentagon. For instance, regarding the provision of additional military judges, the document notes that the purpose is to assist commission judges in “managing military commission dockets,” and emphasizes that this is simply an “additional tool” that “does not obligate military judges to refer matters to motion judges.” Proposal at 5.

For the videoconferencing provision, the Pentagon says “[t]he provision is intended to provide flexibility at the military judge’s discretion to convene hearings without requiring all necessary participants to travel to Guantanamo Bay, Cuba.” Id. at 6. The Herald notes that this “new proposal is the opposite of a withdrawn Pentagon order to speed up the trials by having judges live at the isolated Navy base,” after Judge Pohl ruled last year that the order was “an attempt to unlawfully influence the court” and “froze the 9/11 trial until the Pentagon rescinded it.” But, according to the Herald, defense counsel Jay Connell argued that the provisions are unworkable “because everyone has a right to be present at their own trial.” Further, one criminal defense attorney noted that a similar idea was proposed in the Federal Criminal Rules Committee several years ago but that it was rejected because “[t]he Confrontation Clause has to do with physical presence.”

You can read the proposed amendments here or below: