Marty’s important post from last night includes a link to yesterday’s statement by General Mark Martins, Chief Prosecutor of the Guantánamo military commissions, in anticipation of this week’s trial proceedings in the al-Nashiri case. Among other things, General Martins’ statement included the following paragraph, which appears to be a response to this post of mine from last Wednesday about the Court of Military Commission Review’s decision to throw out the guilty plea of David Hicks in light of the en banc D.C. Circuit’s holding that it violates the Ex Post Facto Clause, even under plain error review, to convict military commission defendants of “providing material support to terrorism” for conduct that predates the October 2006 enactment of the Military Commissions Act:

Although the U.S.C.M.C.R.’s ruling is one that some have dramatically suggested portends demise of military commissions, the decision instead affirms that they are a resilient part of our justice and counterterror institutions. They are capable of confronting charging theories pursued in 2007 (Hicks) and 2008 (Al Bahlul) that ultimately proved improvident and of correcting defects in the legal framework pursued by those who established original military commissions in November 2001 without congressional sanction (Hamdan v. Rumsfeld, 548 U.S. 557 (2006)). Wednesday’s decision reflects that our core legal principles of judicial independence, access to justice, and the rule of law endure in military commissions.

I have nothing but the utmost respect and admiration for General Martins, who has worked tirelessly (and mostly thanklessly) to push for important–if modest–improvements to the commissions, a significant example of which was the subject of Marty’s post from last night. But as I explain below the fold, General Martins’ reasoning not only misunderstands my critique of the commissions in light of these developments, but overstates the extent to which the commissions themselves have been able to identify and correct the fundamental jurisdictional problems that have beset many of the “successful” cases to date–as opposed to merely following the rulings of the Article III D.C. Circuit. Simply put, it’s hard to see in last week’s CMCR decision in Hicks proof that the commissions are “resilient,” so much as that they are finally coming to terms with the consequences of having had so many of the early prosecutions rely upon novel, untested, and ultimately unsustainable jurisdictional theories. 

I.  The “Shrinking Military Commissions” Critique

Off the top, it’s worth stressing that my two posts on the “shrinking military commissions,” which may well have been the motivation for the above-quoted passage from General Martins’ statement, did not in fact argue that decisions like Hicks “portend[ the] demise of military commissions.” Quite to the contrary. What I argued both last week and back in January was that these decisions undermine–perhaps fatally–the success rate to date of the Guantánamo commissions, since they suggest that as many as six of the first seven convictions suffer from fundamental jurisdictional defects. That’s not to say that the commissions are fatally flawed going forward; I continue to believe that the 9/11 trial is on far sounder jurisdictional footing. Moreover, depending upon how the three-judge panel in al-Bahlul resolves the open Article I and Article III questions about whether the commissions can prospectively try “domestic” law-of-war offenses, it’s at least possible that the commissions will also be able to proceed with the case against al-Iraqi and, perhaps, additional cases in the future. (al-Nashiri is another story, since it raises complex jurisdictional issues all its own.)

Rather, my point was somewhat more subtle–that the ever-shrinking success rate of the early prosecutions can and should lead all of us to wonder, as a policy matter, about the wisdom of pursuing such unprecedented legal theories in a largely-untried judicial process. Put another way, shouldn’t these developments provoke everyone to question whether this has all been “worth it”? And, as I suggested last week, shouldn’t they also give pause to those, like 10 of the 11 members of the Senate Judiciary Committee’s majority, whose knee-jerk reaction to every new overseas arrest of a terrorism suspect is to demand their trial before a commission? Simply put, my argument is not that these developments portend the demise of the commissions; it’s that they reinforce the perils of choosing commissions over civilian criminal trials in cases in which both forums appear at least jurisdictionally available. That choice may not have been available in all of the legacy cases, of course, but it should be in every case going forward.

II.  The Difference Between “Resilience” and Being Bound by Precedent

The substance of my critique notwithstanding, General Martins’ basic point appears to be that we should see in Wednesday’s CMCR decision in Hicks some kind of validation of the commissions insofar as it suggests that the commission system is capable of cleaning up its own messes–“resilience,” in General Martins’ words. In the abstract, I’m quite sympathetic to this argument. Indeed, I’ve written at length elsewhere about the significance of the Supreme Court’s 2009 decision in Denedo that, in upholding the power of the appellate courts in the court-martial system to issue writs of error coram nobis, affirmed the ability of the court-martial system to self-regulate–and, in the process, went a long way toward solidifying its structural independence.

But there’s a critical difference between the kind of independence reflected in Denedo and what’s happened to date in the commissions. After all, the vacatur in Hicks and the disapproval of the conviction and sentence in Muhammed both came only after and in light of the en banc D.C. Circuit’s decision in al-Bahlul. And that decision featured a unanimous reversal by the D.C. Circuit, applying incredibly deferential plain error review, of legal theories unanimously upheld by the military commission trial courts and CMCR in al BahlulHamdan, and a handful of other cases. In other words, until the en banc ruling in al-Bahlul, the military commission trial judges and CMCR had not sounded a single skeptical note about jurisdictional theories that were unanimously swept aside by Article III judges even under plain error review. That’s not “resilience”; that’s myopia. General Martins suggests that “Wednesday’s decision reflects that our core legal principles of judicial independence, access to justice, and the rule of law endure in military commissions.” Yes, but only by dint of the appellate jurisdiction exercised over the commissions by the D.C. Circuit–and the ineluctable fact that the commissions are bound to follow that supervisory Article III court’s rulings.

At the end of his statement, General Martins concludes that “I am confident that the charges for which current and future defendants will stand accused are sustainable.” Insofar as he’s referring to the 9/11 trial, I agree. Insofar as he’s referring to al-Nashiri and al-Iraqi, the jury is very much still out. But regardless of whether all of these charges do end up surviving legal challenge, that says nothing about whether, as a policy matter, these (and future) cases ought to be brought before the commissions. Thus, General Martins may well be correct that the commissions are “the forum best suited to try a narrow but critically important category of cases,” but it’s not at all clear to me that this category does or should extend any further than the 9/11 trial.