Daphne Eviatar has a copy of the protocol for military commissions, and it clearly favors the use of military commissions not just for those captured in a theater of active combat but for those whom, by any objective measurement, would be considered criminals rather than battlefield combatants--which is against the administration's stated preference of trying suspected terrorists in civilian courts "where possible."
I would be careful about imputing Congress' preferences about how the military commissions should be used to the White House. As I reported a while ago, Congress and the White House were at odds over the new rules for the military commissions with civil-liberties groups in the middle, advocating for the administration's stricter standards for due-process protections and eschewing coerced evidence but opposing the commissions as a whole. Congress pretty much did what they wanted.
At the same time, it's not clear that the administration won't take advantage of Congress' stubbornness--when I asked David Kris, head of the National Security Division at the Justice Department whether the administration would choose not to charge detainees tried by military commissions with "material support for terrorism" after the administration urged Congress to remove that from the list of potential war crimes charges, Kris demurred. What that means is that it's very likely that we'll see the administration choosing to charge suspected terrorists in military commissions based on the strength of the government's case and not the nature of the offense.
-- A. Serwer
