Warsame and the Obstacles Associated with the Military Commission Option in this Particular Instance

One line of criticism emerging this morning in relation to the Ahmed Warsame situation is the argument that Warsame should be tried by military commission rather than in a civilian court.  Ben nails it here when he says that this largely reflects a "per se" approach favoring commissions rather than a specific argument as to why commissions would be better suited in this particular instance.  But let's say that the argument does turn to the specifics of the trial forum choice in this context.  What might we say about that? Issue 1: Available Charges - The substantive offenses available to be charged against Warsame are more numerous, and less likely to be declared invalid down the road, in the civilian system.  Several of the charges involved material support and conspiracy, and though the CMCR in Hamdan recently approved the use of material support in commissions (and though it very likely will do the same in al-Bahlul as to conspiracy), it is very possible that some time over the next three years a DC Circuit panel, the en banc DC Circuit, or the Supreme Court will give a definitive opinion to the contrary [UPDATE: a reader points out that this may be more likely to be the case with respect to pre-2006 conduct, which raises an Ex Post Facto issue, than in connection with cases like Warsame's where the conduct arises after Congress has explicitly purported to confer jurisdiction on commissions to prosecute material support and conspiracy - an excellent point that I wish I'd mentioned previously].  And then you have the gun charges against Warsame (carrying firearms in connection with a crime of violence), which pack substantial penalties but which have no analogue in the military commission system.  So too for 18 USC 2339D, making it an offense to receive (not give) military-style training from a designated FTO.  All of which highlights an important point about the stability of the charging options in the military commission system: they are relatively stable and hence reliable as to allegations of involvement in specific violent acts, but they are very unstable and unreliable (and will remain so for at least another year or so, pending more rulings) when it comes to support/conspiracy-style cases.  KSM-type cases, accordingly, make much more sense for commissions than do Warsame-type cases. Issue 2: Protection of Intelligence - It is commonly said that military commissions do better than civilian courts in terms of protecting intelligence.  I don't think that claims holds up to inspection in general, and it definitely would not be the case here for a reason that is embedded in the structure of the commission system itsef.  In order to establish personal jurisdiction in the commission system, prosecutors would have to prove that Warsame (i) engaged in hostilities against the US or its coalition partners, (ii) provided material support to hostilities against the US or its coalition partners, or (iii) was part of al Qaeda.  None of that must be proved in a civilian court as a predicate to having jurisdiction in the first place.  So why does this matter?  It would not be a big deal if the offense conduct in any event would require more or less the same proof; that is, it would not put an extra burden on the government to disclose or make use of sensitive intelligence if the intelligence would be needed to prove the charges eventually in any event.  But the charges in this case would not pose that same burden.  The charges themselves require no evidence that would tend to prove that Warsame's conduct linked to al Shabab or AQAP in a manner that involved hostilities against the US in particular (or its coalition partners).  Now, of course, it may be that it would not be a big deal for the government to have to come forward with evidence establishing such a nexus in order to comply with the commission's jurisdictional rules, but that's not the sense I get when I read the reporting and summaries of the background briefings.  My impression, rather, is that one reason that all agencies involved--including the Intel Community--would just as soon see this case tried in a civilian setting is precisely in order not to have to go into a military commission with evidence showing just how Warsame's conduct linked back to hostilities against the US or its partners.  And even if I'm wrong about that--I certainly could be--the fact remains that this is an additional factual hurdle in the commission system, one that just doesn't arise in the civilian setting.