Courts-Martial v. Military Commissions

Thanks Professor Ku for raising some great questions in response to my Courts-Martial v. Military Commission post. I will try and clarify some of my views.

First, my discussion of this alternate tribunal was directed more towards Chancellor Merkel’s comment that some alternate means must be developed to deal with the detainees at GTMO. I agree with you that use of courts-martial would probably not eliminate the need for a detention/confinement facility like the one at GTMO. I am not sure if original use of courts-martial would have impacted the need for a detention facility at GTMO. What I do know is that the President has made a determined effort to prohibit judicial review of cases brought before the Military Commission. This was explicit in the Military Order that created the Commission. However, it might have also motivated the choice of GTMO as the detention center because of the administration belief that federal court jurisdiction did not extend to that location.

I do, however, believe that the detention operation at GTMO and the Military Commission concept are linked in the minds of many observers and critics of U.S. policy. I believe the creation of a “special” tribunal for the sole purpose of dealing with the type of individuals detained at GTMO, under plenary executive branch authority, contributed to the perception that the entire GTMO operation was of dubious legality. While it is pure speculation, I also believe that if the U.S. had originally decided to use the courts-martial process to hold detainees accountable for alleged war crimes, it would have enhanced the perception that the U.S. was making a good faith effort to address the challenges associated with these detainees within the limits of the law. Even at this late stage, I think it would have a positive effect.

I also agree with you that most critics are looking for a civilian process. However, it would have been much easier for the U.S. to make the case that use of courts-martial reflected a reasonable balance between the desire to treat offenders as “war criminals” by allowing them to be judged by members of the military profession and the need to uphold basic principles of justice. Would I support civilian process? If the prosecution can properly allege a war crime, I believe any tribunal that satisfies basic principles of justice vested with jurisdiction to try such offenses is appropriate. My personal preference would be for a military court, because I believe the use of such courts to hold individuals accountable for violations of the law of war contributes to the validity of that law. But I also recognize that prosecution in an Article III court for violation of the War Crimes Act would be equally appropriate.

Finally, contrary to what my original post may have suggested, I do not believe the current Military Commission is a valid tribunal. Even assuming the acts of detainees at GTMO can be properly characterized as violations of the law of war, I do not believe the current Commission structure satisfies minimum standards of justice necessary to qualify as “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” (see here for Common Article 3). The most obvious deficiencies, as I mentioned in my original post, include the plenary authority of the President and Secretary of Defense over the process, and the lack of any meaningful judicial review. In short, I believe the U.S. must accept the “bitter with the sweet.” It cannot legitimately invoke the authority of the law of war to create a Military Commission and charge violations of that law without affording the judicial guarantees required by that same source of law. I believe a General Court-Martial satisfies these requirements.

Would it make a difference to the Germans or other critics? Maybe not, but I believe it would be an alternative that would, over time, earn far more respect than our current approach.