Congress has passed a bill authorizing the use of military commissions to try people suspected of terrorism and providing for restrictions in how such a person might defend himself against the charges.

“As our troops risk their lives to fight terrorism, this bill will ensure they are prepared to defeat today’s enemies and address tomorrow’s threats,” President George W. Bush said in a statement Friday. “I look forward to signing this bill into law.”

Congress acted after a June Supreme Court decision which struck down the military commissions then being used to try terrorism suspects at Guantanamo Bay because Congress hadn’t authorized them.

The military commissions, which apply only to people who are not citizens of the United States, and who are determined to be “unlawful enemy combatants,” will restrict the defendants’ ability to examine evidence against them and also restrict the ability of detainees to petition for a writ of habeas corpus, challenging the legality of their detention.

The military commissions would not apply to American citizens, even if they were detained abroad.

And on that point, Arlen Specter is an idiot.

Judiciary Committee Chairman Arlen Specter (R-Pa.) voted for the bill after telling reporters earlier that he would oppose it because it is “patently unconstitutional on its face.” He cited its denial of the habeas corpus right to military detainees. In an interview last night, Specter said he decided to back the bill because it has several good items, “and the court will clean it up” by striking the habeas corpus provisions. — Washington Post

Timothy Lynch, director of the Cato Institute’s Project on Criminal Justice, points out that the Supreme Court has been doing just the opposite lately. “Don’t be surprised if one or two Supreme Court justices respond with something like this: ‘This is a grave matter and judges are ill-suited to make national security decisions and so I think it proper to defer to the considered judgment of elected representatives of the people in the Congress on this habeas corpus matter.’”

Now, correct me if I’m mistaken, but I thought the Supreme Court decided inMarbury v. Madison that it would judge what is constitutional and what isn’t. It seems that lately, it’s been trying to forget all about that decision, and deferring to Congress a bit too much.

Lynch also wrote that Cato adjunct scholar Richard Epstein criticized the proposals to curtail habeas corpus in a statement (PDF) to the Senate Judiciary Committee.

I’m not terribly concerned about the existence of the military commissions. I am, however, very concerned that detainees accused of terrorism get something resembling a fair trial. We’ve seen too many innocent people pass through Guantanamo, and those people should be able to challenge their detention. I don’t believe we’ve yet reached the point where we need to throw out the rule of law (PDF) in dealing with terrorism.