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The Shrinking Military Commissions

Yesterday’s news that the Convening Authority for the Guantánamo military commissions has “disapproved the findings and sentence,” and dismissed the charges in the case of United States v. Muhammed is not especially surprising. After all, Muhammed pled guilty in February 2011 to providing material support for terrorism and conspiracy to provide material support for terrorism based on conduct that predated the Military Commissions Act–the very charge that the en banc D.C. Circuit unanimously held in al Bahlul violated the Ex Post Facto Clause (even under deferential “plain error” review). It’s surely to the Convening Authority’s credit that he took this step and spared Muhammed of the need to ask the Court of Military Commission Review or D.C. Circuit for such relief–although it says something that what would otherwise be an obvious and routine development in our civilian criminal justice system is nevertheless praiseworthy in this context.

But the larger point to take away from yesterday’s dismissal of the charges in Muhammed is the extent to which the commissions may very well be in the middle of crumbling, thanks to the en banc decision in al Bahlul, and, perhaps, the forthcoming three-judge panel decision on remand in the same case. A common statistical claim is that the commissions have convicted seven defendants–al-Bahlul, Salim Hamdan, David Hicks, Omar Khadr, Majid Khan, Muhammed, and Ibrahim al-Qosi, But Hamdan’s and Muhammed’s convictions have now been thrown out in their entirety; al-Bahlul’s has been thrown out in part (and may still be thrown out in its entirety); and appeals are pending in some shape or form in HicksKhadr, and al-Qosi–several of which may well succeed. Indeed, the only “stable” military commission conviction to date is that of Majid Khan, who pled guilty three years ago to a series of charges that unquestionably include clearly established international war crimes.

By the time the dust settles on the current appeals, then, there may well be one conviction left standing (Khan), while the pre-trial proceedings meander on in the 9/11 trial and al-Nashiri–and all while civilian trials, with their at-times draconian sentences, continue apace.

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About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).