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The return of Military Commissions?

Today’s Washington Post is reporting:

The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections, government officials said.

The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly.

As will be recalled:

In one of its first acts, the Obama administration obtained a 120-day suspension of the military commissions; that will expire May 20. Human rights groups had interpreted the suspension as the death knell for military commissions and expected the transfer of cases to military courts martial or federal courts.

Officials said yesterday that the Obama administration will seek a 90-day extension of the suspension as early as next week. It would subsequently restart the commissions on American soil, probably at military bases, according to a lawyer briefed on the plan.

.     .     .

The administration’s extension would allow it to meet a requirement to provide Congress with 60 days’ notice of any rule changes in the way the commissions function, officials said. Congress established the commissions in 2006 after the Supreme Court struck down a system of military tribunals created by the Bush administration.

According to the Post:

Under the administration’s rule changes, hearsay evidence would be admissible if a judge determines it is reliable, officials said. That provision would allow the government to introduce some intelligence material that would ordinarily be barred in federal court or military courts martial, the officials said. There is precedent for admitting hearsay evidence in international courts, including at the International Criminal Tribunal for the former Yugoslavia.

Why would the Obama Administration want to  rerutn to the use of Military Commissions? The  Post notes:

The Obama administration’s plan to reinstate the commissions with modifications reflects the fear that some cases would fail in federal courts or in standard military legal settings.

“It looks a lot more difficult now than it did on Jan. 20,” said one government official.


A couple of comments.

First, undoubtedly the challenge of dealing with the detainees does look a lot different now than the did to the presidential candidate and his campaign team. It is always easy to be critical from the outside.

Second, the Obama Administration is clearly inheriting tremendous mistakes made by the previous Administration with respect to the methods it used to obtain evidence. Had the previous Administration been thinking more carefuly about trials of detainees, they might have taken a different approach.

Third, all this having been said, I am still quite concerned that reviving Military Commissions– even with revised rules– will continue to send the wrong message to the international community, set dangerous precedents with treatment of detainees in other conflicts, and deprive detainees of rights to which they should be entitled. Moreover, the return to Military Commissions will clearly invite more litigation. And it may be difficult for the new scheme to meet Constitutional muster.

So what should be done?

Admittedly, I do not have an insider’s knowledge. By all accounts some of the detainees are truly dangerous persons that are likely to continue to be a threat to the United States. And these may be precisely the persons that would not be able to stand up to the rules of evidence in regular Federal Court.

So here is my suggestion:

Take another look at the system of Courts Martial established in the Uniform Code of Military Justice (UCMJ). Over the course of the past several years, a number of  experts, including Hamdan counsel and Principle Deputy Solicitor General Neal Katyal, have suggested that this may be the proper venue to try the detainees. While the Post article seems to indicate that the Administration has rejected that option, I would encourage giving it another look. Perhaps there could even by some modification made to the UCMJ for that purpose. I would urge the Administration to consult noted military law experts– such as former Pentagon staffer  Col. W. Hays Parks or former JAGs, such as Major General Thomas Romig.

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One Comment

  • Paul Hughes says:

    I’m still not certain why the government doesn’t just prosecute these individuals in federal court. Sure there may be difficulties with confidential information, but CIPA can go far to overcome these problems.

    Indeed, two partners and a team of associates from Akin Gump wrote a white paper for Human Rights First that provides a road map for pursuing terrorism charges in federal courts. The report lists the 123 successful terrorism prosecutions in federal courts in the last 20 years or so. (At 133-37). Given that the government has successfully prosecuted scores of terrorists in federal court, and that federal courts are highly legitimate, it is unclear to me why they are not the default venue for terrorism prosecutions.


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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.