The Commission Prosecutor: Navigating Uncharted Ethical Waters in a Sea of International Uncertainty

Abstract:     
The ethical challenges confronting Military Commission prosecutors is indeed unique. Unlike the 'typical' stress associated with the prosecutors obligation to 'do justice', these prosecutors face a dilemma far more complex than the question of how far to push an evidentiary rule or whether to charge an offense unsupported by probable cause. Instead, they confront the ethical dilemma created by a potential conflict between the legitimacy of two conflicting sources of law: domestic and international. On a daily basis, they must reconcile the scope of criminal liability established by Congress in the Military Commissions Act with the scope of criminality derived from the law Congress purported to codify: the law of armed conflict. The potential delta between these two sources of law creates for them an ethical dilemma of massive proportion: What is the prosecutor’s duty when the law she is told to implement is itself of suspect legality? This article will explore the source of this dilemma, and propose that it is the law of armed conflict itself that provides the most effective test for determining when executing the law may itself be inconsistent with the ultimate obligation to 'do justice.'

Number of Pages in PDF File: 22

Keywords: military commissions, international law, prosecutorial ethics, the Law of Armed Conflict, humanitarian law, national security law, war crimes

working papers series