Back to Military Commissions?

I imagine many readers have by now seen this story in the New York Times (and Julian beats me to it!) reporting that the Obama administration appears ready to return to military commissions for trying at least some Guantamo detainees:

Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.

Obama administration officials — and Mr. Obama himself — have said in the past that they were not ruling out prosecutions in the military commission system. But senior officials have emphasized that they prefer to prosecute terrorism suspects in existing American courts. When President Obama suspended Guantánamo cases after his inauguration on Jan. 20, many participants said the military commission system appeared dead.

But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.

“The more they look at it,” said one official, “the more commissions don’t look as bad as they did on Jan. 20.”

My WCL colleague, Darrin Hutchinson, sums up one (unhappy) view of this from the left, here.  

But I want to skip over the charges of hypocrisy and walk-backs and address a longer term issue.  Part of the idea of national security court has been the issues of evidence and all the process questions that the Obama lawyers are discovering, now that they have to deal with them.  Julian is right to note the problems with trying to use a brand new, long term idea like a civilian national security court in the current circumstances – takes too long to set up, etc.  Points well taken.  But the revival of military commissions as the way to deal with what can’t be dealt with in ordinary US federal courts – as a sort-of practical, real life version of a national security court today – revives some of the problems of the Bush administration’s all-war, all-the-time legal approach to terrorism that a civilian national security court might be able to address.  

To be clear, and as I’ve explained at greater length elsewhere, I do regard ‘war’ as the appropriate strategic frame. But that does not lead me to conclude that ‘war’ is the correct legal frame in any and all circumstances.  Many of the Bush administration’s problems, in my view, arose from wanting to call it ‘war’, less because that was what all of its counterterrorism was, and far more in order to be able to benefit from the legal incidents of war.  The legal tail of incidental legal authority in war wagging the dog of actual war.  I do not think the Obama administration does well to go down the same road; it has Congress, and it should pass legislation that sets up structures specifically about terrorism and counterterrorism, with the future in mind, not only the past. 

Hence the question:  Are these military commission procedures going to be reserved, for example, solely for the “legacy” detainees at Guantanamo?  But is it not possible that the United States might capture, or have turned over to it, at some point in the future some new detainee – what happens then?  Or does the Predator solve the future messy problems of detention and interrogation that are politically now too difficult to deal with?  

One virtue in setting up a national security court that is civilian in nature, rather than military, is that it might allow the USG a forward-looking process on the question of how to deal with counterterrorism detainees, including new detainees.  A structure that gets outside of military commission concepts altogether, and which would have the explicit blessing of Congress, the two political branches acting in concert, and all those good things.  

The current proposal appears to me, at least, to be an ad hoc attempt to address the “trial” part of the question of detention, but as though it were solely about the “legacy” detainees and as though it were solely about the past.  Is it really so certain, however, that even in the current struggle against Al Qaeda and its affiliates, however loosely defined, that the United States will never have reason to detain anyone, or to conclude that they cannot be released, or to conclude that they cannot be tried in regular court?  Are we back to the military commission system, then, for such new detainees, or something different?  Will President Obama or Secretary Gates designate some new detainee as, well, what?

For that matter, it will not always and forever be about Al Qaeda or actors covered by the AUMF.  (And so, although even next year it will still be a bit premature, one of my next articles will be … Covert Action after Al Qaeda.  Catchy.)