Guantanamo: Prosecutions

The five Guantanamo detainees on trial before a military commission for allegedly orchestrating the September 11th attacks all returned to court Tuesday morning, as pre-trial proceedings in their case continued for a second day in a row. On Monday, the session was almost immediately derailed by detainee Walid Bin Attash’s unexpectedly raising the possibility of representing himself pro se.

I normally don't write about the substance of New York Times editorials, prefering to keep my role pure as the Grey Lady's unofficial—and lamentably unpaid—fact-checker on national security legal matters. But Sunday's editorial on "How to Close Guantanamo" requires brief comment.

As I explained on Sunday, one way to understand the diffference between the majority and dissenting opinions in last Friday's D.C. Circuit decision in al Bahlul v. United States is as reflecting two different methodological approaches to the question of whether Congress can empower non-Article III military commissions to try "domestic" offenses like inchoate conspiracy.

From Defense One: