On the Resumption of Military Commissions

Not to be outdone by Ben in terms of posting to other outlets, I have a short piece up at Foreign Policy's website concerning the prospect that military commissions will soon begin moving forward with new cases.  If you've read my other work on this topic (see here, for example), you won't be surprised to see that I argue that the commissions are not the ideal solution that some supporters claim nor are they the kangaroo courts that some critics describe.  As to the former, they remain subject to tremendous litigation risk in the sense that critical issues remain unresolved and will not be resolved until, years from now, the D.C. Circuit or the Supreme Court finally resolve them.  In particular, we just do not know whether material support, conspiracy, and murder in violation of the law of war will prove sustainable as charges from pre-2006 conduct, nor do we know whether the Confrontation Clause might yet have to be enforced in a manner that defeats much of the utility of the commissions's receptivity to hearsay.    As to the latter, commissions have progressed greatly from their post-9/11 origins in the fall of 2001.  Military judges preside.  Appeals run (eventually) to the Article III courts.  Ex parte evidence is not permitted.  The fruits of coercion and torture must be excluded, as must any merely  involuntary statement--with a truly narrow exception for statements at the point of capture on the battlefield.  The major lingering differences between this system and civilian courts (and courts martial) are, arguably, the lack of a requirement that the verdict be unanimous (in my original draft for Foreign Policy I mistakenly asserted that this rule had been changed, which was an embarrassing error on my part), and the open approach to hearsay (though, as noted above, the ultimate result on the Confrontation Clause question could largely negate this difference).  Another reason not to get too worked up about the impending renewal of commission proceedings: the names in circulation right now (like al-Nashiri) are people who have long-since been designated by this administration for commission rather than civilian trial.  No decision has yet been made as to whether to shift individuals originally slated for civilian trial over to the commission track.  Of course, making such a decision with respect to the 9/11 defendants will have tremendous political significance.  But as I argue above and in the piece on FP's site, the practical differences are likely to be overstated by many critics and supporters alike.