Destined for an epic fail : the problematic Guantánamo military commissions
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Ohio State law journal, Vol. 75, issue 5, 2014, p. 903-967
This article provides the most comprehensive critique of the current Obama administration commissions to date. It identifies key procedural deficiencies undermining their legitimacy, including excessive concentration of authority in the convening authority, limits on the right to counsel of choice, systemic inequalities between prosecution and defense, abuses of classification authority, and potential use of statements obtained through coercion, if not outright torture. Flaws in the substantive law are even more significant. Without valid jurisdiction, any trial is a legal nullity, and procedure becomes irrelevant. The Guantánamo tribunals necessarily draw their authority from the law of war, yet most charges levied to date fail to constitute recognized war crimes. Some charged conduct falls outside the temporal or legal scope of any recognized conflict. Law of war reliance also permits the invocation of unique defenses, including arguments that terrorist targets were valid objects of attack and that civilian deaths were permissible “collateral damage,” unavailable in ordinary criminal prosecutions. Pending cases drag through interminable pre-trial proceedings as every aspect of their untested procedure and jurisdiction is subject to challenge, while federal courts continue to routinely return convictions and long sentences in terrorism cases. Moreover, the commissions will be subject to years of additional post-trial and collateral challenges as well. They have already failed one major test before the Supreme Court and two before the D.C. Circuit Court of Appeals, and the future predictably holds more of the same.