The author asserts that three major Executive branch mistakes in 2001 and 2002 created the conditions for misunderstanding of international humanitarian law and the authority of the military to capture and detain unprivileged belligerents and conduct military commissions. His experience as a career Army Judge Advocate and as the Convening Authority for Military Commissions provides him with a unique perspective. He discusses early Presidential decisions that undermined the good will of the international community, generating critical reaction that forced the administration to respond constantly to debates regarding domestic criminal law standards. Rather, the administration should have engaged in meaningful discussions of appropriate responses to non-state actors waging war and the appropriate application of international humanitarian law standards. The author concludes that the administration's arrogance and naivete led to these mistakes.
Three mistakes by the previous administration in the last quarter of 2001 laid the foundation for criticism that has persisted since that time. Some of the criticism is well-founded; some has been disingenuous. A significant result of these mistakes has been inaccurate information communicated to the public.
The first mistake was the failure to pursue active public diplomacy and education regarding international humanitarian law. The second mistake was failure to conduct Third Geneva Convention Article 5 tribunals in Afghanistan and the concomitant decision to send large numbers of hastily-screened detainees out of theater; and the third mistake was the failure to design and implement, at an appropriate juncture, twenty-first century military commissions.
The current administration is at precisely the same crossroad in 2009. Decisions regarding combat operations, detention policy, detention location, and the nature of twenty-first century war crimes trial venues, including military commissions, face the administration in September 2009. It is important to analyze the events of 2001 in order to inform critical decisions and policies in 2009.
Criticism of the President's 2001 Military Order (1) and later the 2006 Military Commission Act (2) (MCA) as a forum for trying alleged war crimes by members and supporters of al-Qaeda has focused precisely on the feature that makes military commissions useful: the rules and procedures that differ from U.S. domestic criminal trial practice procedures. These differences are lawful and consistent with international legal standards, even though some may consider them ill-advised for policy reasons. While it is true that military commissions have, historically and as a matter of custom, substantially employed the procedural and evidentiary rules applicable at the time to courts-martial, there always have been modifications. The best and most recent example is the military commission as employed in the 1940s, when the courts-martial rules were modified for commissions to allow hearsay, closed sessions, and to provide finality through prompt review, but no appeal. (3) That exception to pre-existing custom, in the wake of the MCA, retains vitality as manifest in the statutory mandate (4) to employ other procedures and rules of evidence.
The commission is simply an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as the Commander-in-chief in war. In some instances ... Congress has specifically recognized the commission as the proper war-court, and in terms provided for the trial thereby of certain offenses. In general, however, it has left to the President, and the military commanders representing him, to employ the commission, as occasion may require, for the investigation and punishment of the laws of war and other offences not cognizable by court-martial. (5) While opinions vary on the vitality of the trials being conducted at Guantanamo Bay, most would likely agree that the limited public acceptance by some sectors of the press, public, and academy in the U.S. and abroad of military commissions as a forum for trial of al-Qaeda and associated non-state actors is the result of a series of complex policy decisions and attitudes. Policies change with the stroke of a pen, but attitudes and public opinion frequently harden; the adage that "there's no second chance to make a first impression" applies with devastating force.
Discussions of the utility of military commissions as an appropriate trial forum frequently find participants already polarized. Without suggesting that any specific policy, practice, or event created this polarization, it seems fair to conclude that a combination of secrecy and exertion of unitary executive power did much not only to prevent the education of the public regarding wartime legal procedures available to the government, but also to reduce proponents of military commissions to sporadic and ineffectual counter punching. In hindsight, the (perhaps) well-intended secrecy that surrounded the formulation and piecemeal implementation of military commissions also served, whether intended or not, to encourage ignorance, both in the public and the press, regarding the history and diversity of military tribunals generally, and the role of wartime military commissions specifically. This secrecy fostered skepticism and ill...