Highlights from Military Commissions Manual

It is intended to ensure that alien unlawful enemy combatants who are suspected of war crimes and certain other offenses are prosecuted before regularly constituted courts affording all the judicial guarantees which are recognized as indispensable by civilized people. This Manual will have an historic impact for our military and for our country.

Published January 18, the Manual sets pretty high expectations, and its "historic impact" is already perceptible. The Manual has ignited polemic in right-wing civil liberties circles and with Democrats in Congress alike.

(24) “Unlawful Enemy Combatant” means:
(A) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces);
or
(B) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
(C) “Co-belligerent” means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common
enemy.

The "MCA" applies "in all places", are we to take from this that the Commissions can be conducted anywhere in the world, and with a seeming universal jurisdiction against "unlawful enemy combatants":

(a) Nature of jurisdiction of military commissions.
(1) The jurisdiction of a military commission is entirely penal or disciplinary.
(2) The M.C.A. applies in all places.
(3) The jurisdiction of a military commission with respect to offenses under the M.C.A. is not affected by the place where the military commission sits. The jurisdiction of a military commission with respect to military government or the law of war is not affected by the place where the military commission sits except as otherwise expressly required by this Manual or applicable rule of international law.

After over five years of waiting "unlawful alien enemy combatants" have the right to know what they are being held for, as long as is "practicable" (whatever that means):

Rule 308. Notification to accused of charges
Upon the swearing of the charges and specifications, the accused shall be informed of the charges against him as soon as practicable. Such charges shall be in English and, if appropriate, in another language that the accused understands.

No non-US citizens may represent the accused as civilian defense counsel, and they must have security clearances at the level of "Secret":

(2) Role of detailed defense counsel when civilian counsel has been hired. When the accused has civilian defense counsel, the detailed counsel is “associate counsel” unless excused from the case (see R.M.C. 506(b)).
(3) Qualifications of civilian defense counsel. Civilian defense counsel who represent an accused in a military commission shall:
(A) Be a member of the bar of a Federal court or of the bar of the highest court of a State, the District of Columbia, or U.S. possession; and
(B) Be a United States citizen; and
(C) Not have been the subject of disqualifying action by a bar or other competent authority; and
(D) Have obtained or be eligible to obtain a security clearance at the level of Secret or higher, as required; and
(E) Have signed the agreement prescribed by the Secretary

Secrecy, all in the name of "national security" (and presumably to protect military and administration officials from embarrassment):

(f) National security privilege. Classified information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security. This rule applies to all stages of proceedings in military commissions, including the discovery phase. Pursuant to 10 U.S.C. §§ 949d(f) and 949j(c), the military judge may issue a protective order to limit the distribution or disclosure to the defense of classified evidence, including the sources, methods or
activities by which the United States acquired the evidence.
(1) To withhold disclosure of information otherwise subject to discovery under this rule, the military judge must find that the privilege is properly claimed under Mil. Comm. R. Evid. 505.
(2) Once such a finding is made, the military judge shall authorize, to the extent practicable:
(A) the deletion of specified items of classified information from documents made available to the defense;
(B) the substitution of a portion or summary of the information for such classified documents;
(C) the substitution of a statement admitting relevant facts that the classified information would tend to prove.

For those whose minds have been turned to mush by years of solitary confinement and torture (i.e. José Padilla), they can take heart in this provision:

Rule 909. Capacity of the accused to stand trial by military commission
(a) In general. No person may be brought to trial by military commission if that person is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings against him or her or to conduct or cooperate intelligently in the defense of the case.

The convicted have only two years to get a new trial if new evidence is found to support their innocence:

Rule 1210. New trial
(a) In general. At any time within two years after approval by the convening authority of a military commission sentence, the accused may petition the convening authority for a new trial on the ground of newly discovered evidence or fraud on the military commission. A petition may not be submitted after the death of the accused. A petition for a new trial of the facts may not be submitted on the basis of newly discovered evidence when the accused was found guilty of the relevant offense pursuant to a guilty plea.

Statements resulting from coercion, as long as they are before December 30, 2005, the date the Detainee Treatment Act, will be admissible as evidence. Torture remains defined as by the Gonzales-Yoo definition, "severe mental or physical suffering":

Rule 304. Confessions, admissions, and other statements
(a) General rules.
(1) A statement obtained by use of torture shall not be admitted into evidence against any party or witness, except against a person accused of torture as evidence that the statement was made.
(2) A statement alleged to be the product of coercion may only be admitted as provided in section (c) below.
(3) A statement produced by torture or otherwise not admissible under section (c) may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this rule.

Discussion
[...]
(b) Definitions. As used in these rules:
[...]
(3) Torture. For the purpose of determining whether a statement must be excluded under section (a) of this rule, “torture” is defined as an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control. “Severe mental pain or suffering” is defined as the prolonged mental harm caused by or resulting from:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

Discussion
See 18 U.S.C. § 2340.
(4) Cruel, inhuman or degrading treatment. The cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
(c) Statements allegedly produced by coercion. When the degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted in accordance with this section.

(1) As to statements obtained before December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into evidence.
(2) As to statements obtained on or after December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (B) the interests of justice would best be served by admission of the statement into evidence; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment.

Discussion
The Detainee Treatment Act, or “D.T.A.,” enacted on December 30, 2005, provides that no individual in the custody or under the physical control of the United States Government shall be subject to cruel, inhuman, or degrading treatment or punishment, as defined by reference to the Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution, regardless of the nationality or location of the individual. Therefore, the M.C.A. requires military judges in military commissions to treat allegedly coerced statements differently, depending on whether the statement was made before or after December 30, 2005. See 10 U.S.C. § 948r(c), (d). For statements made on or after that date, the military judge may admit an allegedly coerced statement only if the judge determines that the statement is reliable and possessing sufficient probative value, that the interests of justice would best be served by admitting the statement, and that the interrogation methods used to obtain the statement did not amount to cruel, inhuman, or degrading treatment or punishment prohibited by the D.T.A. If a party moves to suppress or object to the admission of a proffered statement made before December 30, 2005, the military judge may admit the statement if the judge determines that the statement is reliable and possessing sufficient probative value, and that the interests of justice would best be served by admitting the statement. In evaluating whether the statement is reliable and whether the admission of the statement is consistent with the interests of justice, the military judge may consider all relevant circumstances, including the facts and circumstances surrounding the alleged coercion, as well as whether other evidence tends to corroborate or bring into question the reliability of the proffered statement.

And finally here is the much-commented section which allows for the admission of hearsay as evidence:

Rule 802. Hearsay rule
Hearsay may be admitted on the same terms as any other form of evidence except as provided by these rules or by any Act of Congress applicable in trials by military commissions.

Discussion
The M.C.A. recognizes that hearsay evidence shall be admitted on the same terms as other evidence because many witnesses in a military commission prosecution are likely to be foreign nationals who are not amenable to process, and other witnesses may be unavailable because of military necessity, incarceration, injury, or death. Because hearsay is admissible on the same terms as other evidence, the proponent still has the burden of demonstrating that the evidence is admissible under Mil. Comm. R. Evid. 401 and 403.