Military Commissions Act 2006

"Ten days ago, by a vote of 65 to 34, Congress passed the Military Commissions Act of 2006 (MCA).... The bill includes a number of provisions that protect classified 'sources, methods, or activities' against being revealed.....The bill specifies, for example, that during the discovery phase, the judge may protect classified 'sources, methods, or activities' from disclosure. It also provides that reliable evidence obtained via classified 'sources, methods, or activities' is admissible, even though the sources/methods/activities themselves are protected from disclosure. Finally, it states that the public may be excluded from proceedings in order to protect information whose disclosure would damage national security, including information on 'intelligence or bill enforcement sources, methods, or activities.'"
The Military Commissions Act of 2006: A Short Primer
FindLaw, 9 October 2006

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[Extract from Sec. 3.]

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‘‘§ 949d. Sessions

‘‘(a) SESSIONS WITHOUT PRESENCE OF MEMBERS.—
(1) At any time after the service of charges which have been referred for trial by military commission under this chapter, the military judge may call the military commission into session without the presence of the members for the purpose of—
‘‘(A) hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;
‘‘(B) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members;
‘‘(C) if permitted by regulations prescribed by the Secretary of Defense, receiving the pleas of the accused; and
‘‘(D) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section 949a of this title and which does not require the presence of the members.
‘‘(2) Except as provided in subsections (c) and (e), any proceedingsunder paragraph (1) shall—
‘‘(A) be conducted in the presence of the accused, defense counsel, and trial counsel; and
‘‘(B) be made part of the record.

‘‘(b) PROCEEDINGS IN PRESENCE OF ACCUSED.—
Except as provided in subsections (c) and (e), all proceedings of a military commission under this chapter, including any consultation of the members with the military judge or counsel, shall—
‘‘(1) be in the presence of the accused, defense counsel, and trial counsel; and
‘‘(2) be made a part of the record.

‘‘(c) DELIBERATION OR VOTE OF MEMBERS.—
When the members of a military commission under this chapter deliberate or vote, only the members may be present.

‘‘(d) CLOSURE OF PROCEEDINGS.—
(1) The military judge may close to the public all or part of the proceedings of a military commission under this chapter, but only in accordance with this subsection.
‘‘(2) The military judge may close to the public all or a portion of the proceedings under paragraph (1) only upon making a specific finding that such closure is necessary to—
‘‘(A) protect information the disclosure of which could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods, or activities; or
‘‘(B) ensure the physical safety of individuals.
‘‘(3) A finding under paragraph (2) may be based upon a presentation, including a presentation ex parte or in camera, by either trial counsel or defense counsel.

‘‘(e) EXCLUSION OF ACCUSED FROM CERTAIN PROCEEDINGS.—
The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by

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the military judge, the accused persists in conduct that justifies exclusion from the courtroom—
‘‘(1) to ensure the physical safety of individuals; or
‘‘(2) to prevent disruption of the proceedings by the accused.

‘‘(f) PROTECTION OF CLASSIFIED INFORMATION.—

‘‘(1) NATIONAL SECURITY PRIVILEGE.—

(A) Classified information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security. The rule in the preceding sentence applies to all stages of the proceedings of military commissions under this chapter.

‘‘(B) The privilege referred to in subparagraph (A) may be claimed by the head of the executive or military department or government agency concerned based on a finding by the head of that department or agency that—
‘‘(i) the information is properly classified; and
‘‘(ii) disclosure of the information would be detrimental to the national security.

‘‘(C) A person who may claim the privilege referred to in subparagraph (A) may authorize a representative, witness, or trial counsel to claim the privilege and make the finding described in subparagraph (B) on behalf of such person. The authority of the representative, witness, or trial counsel to do so is presumed in the absence of evidence to the contrary.

‘‘(2) INTRODUCTION OF CLASSIFIED INFORMATION.—

‘‘(A) ALTERNATIVES TO DISCLOSURE.—
To protect classified information from disclosure, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable—
‘‘(i) the deletion of specified items of classified information from documents to be introduced as evidence before the military commission;
‘‘(ii) the substitution of a portion or summary of the information for such classified documents; or
‘‘(iii) the substitution of a statement of relevant facts that the classified information would tend to prove.

‘‘(B) PROTECTION OF SOURCES, METHODS, OR ACTIVITIES.—
The military judge, upon motion of trial counsel, shall permit trial counsel to introduce otherwise admissible evidence before the military commission, while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that (i) the sources, methods, or activities by which the United States acquired the evidence are classified, and (ii) the evidence is reliable. The military judge may require trial counsel to present to the military commission and the defense, to the extent practicable and consistent with national security, an unclassified summary of the sources, methods, or activities by which the United States acquired the evidence.

‘‘(C) ASSERTION OF NATIONAL SECURITY PRIVILEGE AT TRIAL.—
During the examination of any witness, trial counsel may object to any question, line of inquiry, or motion to admit evidence that would require the disclosure of classified information. Following such an objection, the military judge shall take suitable action to safeguard such classified information. Such action may include the review

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of trial counsel’s claim of privilege by the military judge in camera and on an ex parte basis, and the delay of proceedings to permit trial counsel to consult with the department or agency concerned as to whether the national security privilege should be asserted.

‘‘(3) CONSIDERATION OF PRIVILEGE AND RELATED MATERIALS.—

A claim of privilege under this subsection, and any materials submitted in support thereof, shall, upon request of the Government, be considered by the military judge in camera and shall not be disclosed to the accused.

‘‘(4) ADDITIONAL REGULATIONS.—

The Secretary of Defense may prescribe additional regulations, consistent with this subsection, for the use and protection of classified information during proceedings of military commissions under this chapter. A report on any regulations so prescribed, or modified, shall be submitted to the Committees on Armed Services of the Senate and the House of Representatives not later than 60days before the date on which such regulations or modifications, as the case may be, go into effect.

"A few days after terrorists toppled the World Trade Center in 2001, Vice President Dick Cheney said the U.S. would have to 'work ... the dark side' in order to destroy Osama bin Laden's network. Just what the dark side could mean became clearer last month when George Bush suddenly announced that 14 suspected al-Qaeda terrorists had been shipped from mysterious overseas locations to the U.S. detention center at Guantánamo Bay, Cuba. It was the first White House confirmation of a secret CIA-operated network of overseas prisons, places where unorthodox methods of interrogation were not unknown. 'Were it not for this program,' Bush said, referring to the secret prisons and the things done there, 'al-Qaeda and its allies would have succeeded in launching another attack against the American homeland.' When Congress adopted legislation last week to establish military commissions to try terrorist suspects, it also gave approval to that program and then some. By allowing coerced testimony to be entered as evidence in trials, Congress potentially legitimized torture as a means of obtaining information. It left the President in charge of filling in the details of what the allowable methods should be. The clearest limit to what might be done was actually not so clear. The new methods could not constitute 'grave breaches' of the Geneva Conventions. But after all the huffing and puffing from Republican Senators John McCain, John Warner and Lindsey Graham, the Executive Branch kept control over what exactly could happen to an 'enemy combatant.' It was allowed to decide who an enemy combatant might be. The package of measures widened the definition to include any person determined to be one under criteria defined by the President or the Secretary of Defense. More than that, the measures adopted by Congress last week stripped defendants of the ancient habeas corpus right to challenge their detention in court--a step that makes it possible that the Supreme Court will strike down some portion of the law and send everybody back to the drawing board. 'The Supreme Court has made clear on three recent occasions that those whom the White House labels enemy combatants are entitled to challenge their detention before a federal judge,' says Eric Freedman, a law professor at Hofstra University who is a legal consultant to Guantánamo detainees. 'This new law was passed in outright defiance of those rulings.' What the legislation is likely to do even sooner is put the CIA's secret-prison program back online. That's right: back online."
Letting the President Say
A new bill lets Bush define who is an enemy combatant and denies detainees habeas corpus
TIME magazine, 1 October 2006