Court-Martials v. Military Commissions

by Julian Ku

I just wanted to jump in with a quick response to Geoffrey Corn’s excellent post in favor of general court martials over military commissions. If I read his post correctly, he is criticizing the Guantanamo detention centers and the use of military commissions on pragmatic foreign policy grounds rather than on purely legal ones. In other words, he is not contesting the legality of such tribunals under domestic or international law, but he is arguing for different procedures in order to satisfy the concerns of foreign allies.

I think this is a very strong criticism, and one I partially share. But I do have a couple of questions:

(1) Is there any reason to believe that allies like Germany would be satisfied by the use of general court martials instead of military commissions? I realize that there are certain procedural differences that may seem significant to military law experts, but to an outsider, it still looks like a rather stacked process against the detainees. Aren’t critics of U.S. policy really looking for a civilian judicial process, either international or domestic? And would Geoffrey support such a civilian process?

(2) Most importantly, would the use of general court martials have obviated the need for a Guantanamo bay or Guantanamo Bay-like facility to detain combatants that may or may not be charged with crimes? Isn’t it quite likely that allies like Germany would have protested any U.S. military detention center seeking to hold detainees no matter where it is located?

Anyway, just a quick response. I would be curious to hear Geoff’s thoughts.

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