The Shrinking Military Commissions, Redux

Back in January, I wrote a post about the Convening Authority’s decision to “disapprove” the findings and sentence in the Guantánamo military commission trial of Noor Uthman Muhammed. As I suggested then, “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.” Well, the crumbling continued this morning when the Court of Military Commission Review unanimously ruled that the findings of guilty and the sentence of commission defendant David Hicks must also be set aside, since al Bahlul vitiates the constitutionality of the charge (pre-2006 material support) to which Hicks pleaded guilty. The only real issue before the CMCR was whether Hicks had waived his right to appeal in his pre-trial agreement, but the panel unanimously agreed that he had not. [In a separate concurrence, Chief Judge Krauss questioned the validity of the military commission rule that even allows waiver of appellate review as a “term or condition of a pretrial agreement,” given the strong evidence that the MCA does not authorize such a construction.]

Leaving aside the hypertechnical merits of the waiver issue in Hicks, the larger point is the same one I made last month: of the seven military commission “convictions,” three have now been thrown out in their entirety; a fourth (al Bahlul) has been thrown out in part and may yet be thrown out en toto; and two more (Khadr and al-Qosi) have appeals pending.

But yes, Senate Judiciary Committee members–let’s keep holding the commissions out as a serious and meaningful option for the next generation of terrorism trials… 

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Steve Vladeck

Executive Editor of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).