Still a Bad Idea: Military Commissions Under the Obama Administration

Abstract

Although Senator Obama was critical of the Bush administration’s military commissions, President Obama surprised many observers by reviving the trials. Congress then enacted the Military Commissions Act of 2009, improving their procedural fairness including a categorical ban on statements obtained through torture and cruel, inhuman, or degrading treatment. The new statute largely quieted previous criticism and support has grown for commission use in preference to federal courts. This article argues that the commissions remain badly, if not fatally, flawed in both procedure and substantive law. The bar against evidence obtained through coercion is ineffective, for example. Prosecutors seem determined to use such evidence, purporting to rely on commission judges as gatekeepers. But the adversarial commission process then shifts the effective burden of keeping the evidence out to the defense, which is substantially impeded by government control of information about interrogations, abuse of classification rules, and lack of good faith discovery. Other procedural issues include the multiple roles allowed the civilian convening authority, denial of defense representation by counsel of choice, and the inequality of resources and access to evidence between prosecution and defense. Issues with the substantive law being applied are even more significant, with serious defects in almost all offenses prosecuted to date. The most common charges, conspiracy and providing material support to terrorism are not recognized violations of the law of armed conflict which would make them prohibited ex post facto enactments. Other offenses have serious problems as applied, being used to prosecute suspected terrorists on the basis of their status as unprivileged belligerents rather than for conduct violating the law of war. These factors may result in commission verdicts being overturned during judicial review; they will surely undermine the trials’ credibility and enhance support for America’s adversaries.

Keywords: Guantánamo, international humanitarian law, law of war, law of armed conflict, military commissions, murder in violation of the law of war, Omar Khadr, spying, terrorism, war crimes