I appreciate Professor Dehn’s thoughtful response to my post, but in that response he mischaracterized my position on military commissions.
I do not claim that the Common Article 3 “regularly constituted court” and “judicial guarantees” requirements mean that military commissions must have all the procedural guarantees of Article III federal courts. Given that I spent a substantial amount of the space in my post comparing certain aspects of the two systems, I can understand why Professor Dehn may have come away with that impression. But here’s what I actually said on this point:
“[The “regularly constituted court” requirement of Common Article 3] means that individuals accused of war crimes should generally be tried in the domestic courts available (Article III courts, or courts martial at the very least), not extraordinary courts with different, substandard judicial guarantees.” (emphasis added)
Notice that I do not insist that the “regularly constituted court” or “judicial guarantees” requirements mean that alleged war criminals must always be tried in Article III courts, or even courts with the exact same procedural protections. I also do not say that adopting the procedures of the available domestic courts necessarily satisfies the obligations of Common Article 3. One can imagine a great many domestic criminal justice systems – whether based on common law or civil law – that simply do not have the minimal judicial guarantees required by Common Article 3; in these scenarios, there exists a violation of Common Article 3 before we even get to debates over the use of military commissions or other extraordinary courts.
I do claim that, as a general principle, Guantanamo detainees should be tried in the domestic courts that are available as opposed to extraordinary courts with “different, substandard judicial guarantees” – e.g., the current military commissions. I further point out that Article III federal courts or courts martial are the natural forum options for fulfilling the “regularly constituted court” requirement under Common Article 3. (Human Rights First believes that, for various policy reasons, Article III federal courts are the more appropriate choice.)
The idea that Common Article 3’s “regularly constituted court” requirement would prefer the available domestic forums over ad hoc, extraordinary courts is not a novel idea advanced by human rights lawyers; it is the settled law of the United States. The Supreme Court in Hamdan endorsed the notion that “regularly constituted” in Common Article 3 means “established and organized in accordance with the laws and procedures already in force in a country.” The Hamdan Court also favorably discussed the commentary to analogous provisions in the Fourth Geneva Convention, which interpret “regularly constituted” to “definitely exclud[e] all special tribunals.” In short, Common Article 3 embodies something akin to a golden rule, where alleged war criminals are to be afforded the procedural protections that states would normally afford their own citizens, unless there are compelling reasons to depart from those protections.
I also wanted to clarify that I do not believe that military commissions can only try individuals for serious violations of the laws of war, as opposed to everyday violations of the laws of war. (One might hope all violations of the laws of war would be punished, notwithstanding real prosecutorial limitations.) As the Hamdan Court also noted, and as Professor Dehn rightly hints at, the American experience with military commissions is varied, and different types of military commissions have historically been used for different purposes. What I did mean to suggest was that these, post-9/11 military commissions were purportedly set up as law of war military commissions designed to hold trials of enemy combatants for universally recognized violations of the laws of war. The Obama administration was well aware of this as it moved the MCA of 2009 forward, which is why it 1) insisted on a belligerency jurisdictional requirement and 2) objected to the inclusion of “material support” as a war crime on the theory that including it would be inconsistent with the laws of war.
Finally, while I agree that al-Bahlul raises serious issues regarding the customary laws of war and how it will be interpreted by U.S. courts, I disagree that the particular American experience with military commissions, such as their use during the American civil war, is so central to that inquiry. Although it is true, as professor Dehn puts it, “that states, not international courts, commentators or human rights lawyers, make international law,” it is also true that U.S. courts are just as likely (or perhaps even more likely) to reference the jurisprudence of international tribunals as U.S. practice, in construing the requirements of the customary laws of war. (The back and forth between Justice Stevens and Justice Thomas in Hamdan regarding the validity of conspiracy is a case in point.) Indeed, given that conspiracy as an inchoate war crimes offense was rejected at Nuremberg and again in the development of modern IHL, I don’t find it the least bit surprising that the CMCR in al-Bahlul has chosen to focus its inquiry on the validity of Joint Criminal Enterprise (JCE) liability, a customary international law doctrine developed in large part by international criminal tribunals.