I Can’t Wait to See Neal Katyal’s Argument In Defense of Military Commissions

by Julian Ku

It’s official: President Obama is going to revive the use of military commissions to try war on terror suspects currently held in Guantanamo Bay.    Funny how he always announces these sorts of climb-downs on Fridays. 

The ACLU has vowed to litigate this, no matter what, so there will be at least one argument somewhere. If that’s the case, it would be really cool if the OLC memo on the legality of the new military commissions was drafted by blogger extraordinaire Marty Lederman (whose appointment was hailed as a strong signal that things were really going to change), and (even better), that Deputy Solicitor General Neal Katyal ends up defending the new commissions in court!  If that happens, I really hope someone reminds Neal of his 2007 Slate article:

[Military commission] trials are not “equal justice”: For the first time since equality was written into our Constitution, America has created one criminal trial for “us” and one for “them.” The rules for the Guantanamo trials apply only to foreigners—the millions of green-card holders and five billion people on the globe who are not American citizens. An American citizen, even one who commits the most horrible and treasonous act (such as the detonation of a weapon of mass destruction), gets the Cadillac version of justice—a criminal trial in federal court. Meanwhile, a green-card holder alleged to have committed a far less egregious offense gets the beat-up Chevy: a military commission at Guantanamo. Before that commission, that noncitizen will have few of the very rights America has championed abroad, and he can be sentenced to death….

Whatever else might be said about the Guantanamo courtroom, it will never symbolize America or what it is about.


20 Responses

  1. We’ll be fighting in the streets
    With our children at our feet
    And the morals that they worshiped will be gone
    And the men who spurred us on
    Will sit in judgment of our own
    They decide and the shotgun sings the song
    And the world looks just the same
    And history ain’t changed
    ‘Cause the banners, they all flown in the last war
    I’ll tip my hat to the new constitution
    Take a bow for the new revolution
    Smile and grin at the change all around
    Pick up my guitar and play
    Just like yesterday
    No, no!
    I’ll move myself and my family aside
    If we happen to be left half alive
    I’ll get all my papers and smile at the sky
    For I know that the hypnotized never lie
    Do ya?
    There’s nothing in the street
    Looks any different to me
    And the slogans are replaced, by-the-bye
    And the parting on the left
    Is now the parting on the right
    And the beards have all grown longer overnight
    I’ll tip my hat to the new constitution
    Take a bow for the new revolution
    Smile and grin at the change all around me
    Pick up my guitar and play
    Just like yesterday
    Then I’ll get on my knees and pray
    We don’t get fooled again
    Don’t get fooled again
    No, no!
    Meet the new boss
    Same as the old boss

  2. Good one, “Pete”.

  3. The pretzel the Obamatons will twist themselves into regarding this is going to be nothing compared to the twists and flips the MSM will do to make this look like the most humane, constitutionally legal decision made by a president since the emancipation proclamation. 

  4. I will try again to post.

    I put up the lyrics to For What’s It’s Worth of the Buffalo Springfield  (“Paranoia strikes deep.”)

    I also say that there should be no third class processes for foreigners.  Courts or courts-martial.  Comply with Common Article 3 – not these post-hoc processes.

    And the key here is criminally prosecution of the high-level civilians or military generals.  That is because that is the hardest thing for this country to do in coming to terms with what it has done.  So much is coming forward on the fecklessness of so many in the political class from the left or the right.

    If we insist, they will prosecute.

    And I leave you with the Grateful Dead, “Truckin””

    “Keep truckin like the doo-dah man.”


  5. Give it up. Obama’s going to do everything Bush did, because Bush was right all along. The only reason the Democrats made a fuss about it was to get elected, and now that they don’t need you anymore it’s under the bus for you.

    They used you. Accept this, learn to live with it, and move on.

  6. Hey you are talking to the dude who said “a politician’s promises only bind those who believe them.”  I will never give it up my friend, nor will lots more.  If we insist they will prosecute.  Otherwise, we are just apologists for torture and acquiescing in it.  Not me and not in the America in which I was raised.  Deal with it.

  7. I cannot believe that some of you folks are still beating that “military commissions/Gitmo/Bush are unAmerican!!!” drum! Geez, let the partisan hackery rest for a while, ok? Oh, and while you are enjoying your new-found free time, read Martin Gilbert’s history of WW2. There is nothing unAmerican about military commissions or detaining enemy combatants. 
    People detained in the course of a war should not– and never will be– subject to the same legal procedures associated with criminal trials. No sane person would insist on it! Hence Obama’s triple lux, back flip-flop on the issue. 
    This just proves that Obama is not stark raving nuts. What’s the rest of yin’s excuses?? 

  8. Hey, at least Bush (with whom I had plenty of gripes) did not suspend the write of habeas corpus for American citizens.  Ya’ll remember who did, right?

    Yes.  Abe “Emancipation Proclamation” Lincoln.

  9. No one said military commissions were un-American.  In WWII they were used in occupied lands and places where the civilian courts were not open or not consider safe.  That is much different from these military commissions that are structure put in place to provide Kangaroo process.  Obama’s “revision” does not address the Common Article 3 requirement of “regularly constituted”.  These are additional versions of what are called “tribunal d’exception” in the literature that have a very poor track record.  This is using legal forms without using legal norms.

  10. It’s just fun to see the self-serving politicized moralists caught between Bush-hatred and Obama-worship.  If pointing that out is prickish, which I doubt, then we need a lot more prickery — because there are still a lot of preening dishonest moralists out there in the international law field.  Pricking balloons full of hot air is always a public service.

  11. Benjamin Davis:

    Military commissions in WWII were also used right here in the good old United States.  The eight Nazi infiltrators of Operations Pastorius were tried in the United States by military commission.  Two were imprisoned, six were executed.


    Farther back in time, the Booth Conspirators were also tried by military tribunal.  http://en.wikipedia.org/wiki/Abraham_Lincoln_assassination#Conspirators.27_trial

  12. Yes military commissions were used in the South during the Civil War in this country.  That is what I meant by their use when the regularly courts were not available.

    As to FDR’s Nazi Saboteur military commission – I commend to you Lewis Fisher’s magisterial Presidential Power and Military Tribunals (2005).

    The kangaroo nature of the Nazi Saboteur commission is amply demonstrated in that work.  Further, one of the saboteurs was a U.S. citizen so they also stand for the proposition that US citizens when courts are regularly constituted can be treated like this, notwithstanding Ex parte Milligan and all that.

    What few who seem to invoke that Nazi Saboteur tribunal get is that between the oral “Ok’ of the Supreme Court and the actual Supreme Court written decision, Roosevelt approved and had executed some of them convicted by the tribunal and others went to prison.  So the Supreme Court decision was written after at least some of the defendants had been executed by the United States.  That would appear to be a fundamental flaw with that opinion, together with the flaws of the process that was used, and the flaws of the appeals process.

    So if you want to cite crap from American history, then we can go through a lot of it.  For example, check out Chambers v/ Florida (1938) and Judge James Robertson’s reference to the problems with that process that were concerns about Hamdan’s military commission in his decision of last summer.

    As to crappy judging in military commissions, look at the analysis of the judge on the extension of other aspects of the Constitution beyond habeas to Hamdan in his opinion.

    All this is discussed in my piece No Third Class Processes for Foreigners, 103 Nw. U. L. Rev. Colloquy 88 (2008)http://colloquy.law.northwestern.edu/main/2008/09/no-third-class.html


  13. The military commissions are beyond salvage: they represent a criminal offense pursuant to 18 USC 2441(c)(2) and either 18 USC 2441(c)(1) or (c)(3).

    And to the jerk who says “give it up”, be advised that I do not intend to give it up until such time as worthless lying hypocrites like YOU are no longer allowed to teach or practice law.

  14. “open hearts, open minds, fair-minded words.”

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