A while ago, I reported a story on how civil-liberties and human-rights groups were trying to get Congress to adopt stricter due-process standards for the military commissions. The White House thought the military commissions needed these changes to be constitutional, and even though human-rights groups were opposed to the military commissions in principle, they were still trying to make them as close to civilian trials as possible. Yesterday, the administration appeared to have reached a deal with Congress in the National Defense Authorization Act, which if passed would approve changes to the military commissions and allow detainees to be transferred to the United States, but only for prosecution.
The main problem with the changes to the military commissions is that they lack a "voluntariness clause" that would prevent the admission of coerced evidence (not necessarily from torture, but say, statements given under duress), because even Democrats in Congress balked at meeting that standard. Here's the thing though: A May 2009 memo from the Office of Legal Counsel reportedly suggests that the military commissions will be unconstitutional without it. The ACLU has made a FOIA request for the memo, but it hasn't been released yet.
The ACLU has registered other due process objections. But what's strange to me is that the president is now in a position where he may end up signing a bill that his own OLC says might be unconstitutional.
-- A. Serwer
