Last Friday's D.C. Circuit ruling in the Khadr case provides yet another striking illustration of how misbegotten an experiment the Court of Military Commission Review has turned out to be. As this post explains, not only does the CMCR suffer from inherent structural flaws that the political branches seem uninterested in fixing, but its substantive role in the military commission process has turned out to be not only woefully inefficient, but affirmatively counter-productive from both the government's and the defendants' perspectives. Simply put, the CMCR has become an object lesson in how not to create new non-Article III federal courts — and an expensive one, at that.
Latest in Military Commissions: Legislative Development
Here y'are. Brig. Gen. Mark Martins' remarks begin as follows:
That's the gist of this Rule 28(j) letter, regarding pertinent post-argument authority. It was filed today with the D.C. Circuit by lawyers for Ali Hamza Ahmad Suliman al Bahlul, whose case could be decided any day now by the full appeals court.
Here's the key part:
You'll find it here. We'll cover the two-day mini-hearing, which will commence tomorrow at 0900 down at Guantanamo.
The statement opens:
My very first Lawfare post, back in December 2011, focused on the messy constitutional question raised by United States v. Ali—a case then pending before the Court of Appeals for the Armed Forces that raised the constitutionality of subjecting civilian military contractors to military, rather than civilian, trials.
From Harold Koh's speech to the Oxford Union: Congressional transfer restrictions with respect to Guantanamo detainees "must be construed in light of the President’s authority as commander-in chief to regulate the movement of law-of-war detainees, as diplomat-in-chief to arrange diplomatic transfers, and as prosecutor-in-chief to determine who should be prosecuted and where."
It's turned out to be a very big news day in national security litigation land... In addition to the extensive coverage of Aulaqi v. Panetta (to which I hope to add some thoughts of my own later tonight), I wanted to flag another very important, but less well-noticed development: The Court of Appeals for the Armed Forces' decision in United States v.
Congratulations to Scott L. Silliman and William B. Pollard III, both of whom the Senate last night confirmed to be judges of the U.S. Court of Military Commission Review. Both men must formally be sworn in before commencing their work on the court. It is unclear precisely when the swearing-in proceedings will take place.
Breaking: earlier today, the Senate Armed Services Committee approved its two pending nominees for judgeships on the Court of Military Commission Review - William Pollard, and Professor Scott L. Silliman (who taught me in law school). You'll find some more background on the nominations here.
Both nominations now proceed to the Senate floor. It is believed that the full Senate will try to confirm both Silliman and Pollard before the legislature's July 4th recess.
Raff pointed earlier to a USA Today op-ed by Rep. Mac Thornberry (R-Texas), the Vice Chairman of the House Armed Services committee.