Where Is the Long-Delayed Ruling from the Court of Military Commission Review as to Viability of Material Support Charges?

By Robert Chesney
Friday, December 31, 2010, 1:22 PM

One of the most important questions clouding the debate over the utility of military commissions has to do with the viability of material support charges in that forum.  To be blunt, we need to know the final answer to this question, and we need to know it yesterday.

The good news is that the issue has been fully briefed and argued to the Court of Military Commission Review (CMCR), which is the first stop on an appellate chain that runs next to the D.C. Circuit and ends with the Supreme Court (should it grant cert.).  The bad news?  The CMCR appears to be in no rush to tell us what it thinks.  The issues were briefed and argued to a CMCR panel way back in January 2010.  No opinion ever issued.  Rather, in September the full CMCR decided to take up the matter on an en banc basis--though without additional briefing or argument--and we are still waiting for their decision.  Given the certainty that their opinion will immediately be taken up to the D.C. Circuit and perhaps beyond after that, we are looking at more than a year's worth of continued uncertainty no matter how they rule.   Now, there may be reasons for the CMCR's delay, but if instead the delay is merely the consequence of the time it requires for a multi-member body in the usual course of business to trade draft opinions and refine arguments, well, a much stronger sense of urgency is required.