Ben bemoans the New York Times Room for Debate feature on military commissions as a tired shadow-boxing match in which “the footwork was learned long ago and is coming out now by rote muscle memory.” In fact, Ben rejects the very question that is being debated (“Time to End Military Commissions?”) and argues instead that “[t]he premise is wrong; military commissions aren’t ending.”
I’m not so sure about that.
Now, obviously the 9/11 and Cole bombing cases are moving forward. And the administration and Congress are at least conceptually committed to the “reformed” military commissions system.
But I think we have entered what I’ll provisionally call the “post-Hamdan II” world, where there is and should be considerable doubt about the utility of moving forward with more military commission cases. This is a world in which a conservative and otherwise deferential D.C. Circuit panel resoundingly struck down the unanimous decision of the Court of Military Commission Review (CMCR), calling into question the legitimacy of the CMCR as an appellate body. It's a world in which the material support charge—arguably the single most important charge in a decade of terrorism trials—is no longer available to military commission prosecutors. And it’s a world in which the conspiracy charge—second only to material support in how frequently it’s used in terrorism cases—may well be off the table very soon. Perhaps most importantly, it’s a world in which the threat from al Qaeda has become increasingly sporadic and decentralized as we quickly approach the end of combat operations in Afghanistan, raising the issue of whether there will be a relevant “armed conflict” to which military commission jurisdiction can attach going forward.
I don’t mean to overstate the case here. We really don’t know for sure what will happen in al Bahlul, and in any event there may be some prospect for moving forward in these cases with aiding and abetting or other charges (though I doubt it, since most of these charges would require completion of an actual war crime). Moreover, it’s fair to construe Judge Kavanaugh’s reasoning in Hamdan II as impacting only those cases that allege pre-2006 unlawful conduct (though there are different, but equally serious, legal issues with charging non-internationally recognized war crimes for post-2006 conduct).
Even so, if I were a government official or lawmaker taking a purely utilitarian look at this issue, I’d be seriously questioning the value of military commissions after Hamdan II. Given that the vast majority of terrorism cases have—for better or worse—relied in large part on material support and conspiracy charges, how many Guantanamo detainees can be reliably tried in the military commission system without substantial risk of reversal on appeal? Absent evidence that an internationally recognized war crime was committed, is there really any sound basis to recommend use of military commissions for future terrorism cases?
We’ve entered this post-Hamdan II world against the backdrop of a military commission system that faces ongoing legal and policy challenges on very basic issues while federal courts have proven remarkably stable and resilient in the face of hundreds of complex terrorism cases. Given this picture, it seems to me that it’s actually a very good time to be asking whether we should end military commissions.
I actually agree very much with Raha's analysis. It illuminates in some detail what I was talking about in much more general terms when I posed the question, "Will the commissions be just a Nuremberg-like forum for the trial of a discrete group accused of a specific group of crimes—a forum for trying Al Qaeda operatives captured in the early days of the war? Or do they have a prospective role too?" And I think Raha's point about the post-Hamdan II environment may ultimately be decisive in rendering any prospective role for military commissions very narrow---though that will, I suspect, depend on whether future attacks make the material support charge (and probably the conspiracy charge too), which is non-viable for pre-1996 conduct, suddenly viable for a new crop of cases.
One additional note: This is precisely the conversation about the future of military commissions that is not taking place on the New York Times Room for Debate discussion, which now sports a contribution from Marc Thiessen of AEI that doesn't deal with military commission at all, but argues instead against closing Guantanamo and for interrogating detainees.