Courts-Martial v. Military Commissions

by Geoffrey Corn

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.

2 Responses

  1. Geoffrey,
    First of all, congratulations to your outstanding contributions to this site. Being apparently the only German who is regularly participating in the debates here, I sort of feel obliged to put my views forward – which are, unlike Chancellor Merkel’s, only representative of myself, I’m afraid. I entirely agree with your post. The very point of Gitmo was to escape the ordinary protections of the law, military or otherwise. Gitmo would not have been necessary if the administration had wished to follow normal legal procedures, including military ones. Of course we understand that, in a war, you take POWs and you may put them before a tribunal for the violation of international law (and local law). We disagree, however, over the whole idea of a “war on terror” rather than a “global struggle against violent extremism”, by the way a Pentagon term. But, if you believe it is a war, you should at least follow the same procedures as the US did, for instance, to its great credit, both in Vietnam and in the first Gulf war, although you could, at least in the first case, make the argument that international law protections did not technically apply. Thus, putting participants of the war in Afghanistan before a Court martial is entirely appropriate, this war being a war in all definitions of the term. Devising a special military tribunal with a lessened procedural standard than the one applied to US personnel, however, appears not appropriate and, indeed, hurts rather than helps the democratic case against Islamic (and other) fundamentalism.
    Best, Andreas Paulus

  2. Geoffrey,
    I’d also like to add my appreciation for your very interesting posts. I have a question about the source of the law being used at the commissions. As we know, the administration maintains that the “war on terror” (as opposed to the narrow conflict against the Taliban in Afghanistan) is not covered by the Geneva Conventions — either the Conventions as a whole under Common Article 2 or provisions on non-international conflicts under Common Article 3.

    It might seem therefore that the commissions are applying customary law — and indeed some government officials have explicitly stated that the “war on terror” is governed by customary law. However the administration’s position as a whole seems to reflect a determination not to acknowledge the legal force of customary law as judicially enforceable law — as in all of John Yoo’s memos.

    And indeed from accounts of the first commission hearings, the prosecution claimed to be relying not on customary law but on something called “commission law”. Can you shed any light on what this means, whether it differs from customary law, and whether it doesn’t open the commissions to the charge of applying laws not in force at the time the offences were allegedly committed?

    If the cases were transferred to General Courts-Martial (and as a UK-based observer I agree that this would make an enormous difference in int’l perception — at least as regards those facing trial) presumably this curious legal concept of “commission law” wouldn’t be applicable and the courts-martial would have to apply customary IHL — thus raising the question of why the same body of law doesn’t also make it an offence for US personnel taking part in the conflict to engage in cruel and inhuman treatment of detainees.

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