Despite comments to the contrary by Assistant to the President for Homeland Security and Counterterrorism Thomas Bossert, prosecution in Article III federal courts has been the most successful long-term option for the U.S. government in dealing with enemy combatants since 9/11.
Latest in Terrorism Trials: Military Commissions
The result of Nashiri II is that we know a few big things we did not know yesterday morning: the federal courts are not going to intervene; Al-Nashiri will go to trial in a military commission; this case is going to take a very long time; and it's going to proceed with a good bit of jurisdictional doubt that will some day require a reckoning.
The D.C. Circuit's refusal to reach the merits of Al-Nashiri's pre-trial challenge to the jurisdiction of the Guantánamo military commissions may seem like a hypertechnical application of a hypertechnical doctrine, but it's premised on a far deeper—and more problematic—normative assessment of the commissions' legitimacy.
Lawfare's Alex Loomis has a fascinating new paper up on SSRN about the scope of Congress's Article I power to "define and punish . . . Offences against the Law of Nations." But it's important to stress what Alex's article does not answer: Although Jack has suggested that Alex's analysis is relevant to the ongoing D.C. Circuit litigation in Al Bahlul over the constitutional powerof Guantánamo military commissions to try offenses like inchoate conspiracy, it goes only to the Article I question presented therein--whether Congress has the power to define inchoate conspiracy as an offense against the law of nations, as it has done in 10 U.S.C. § 950t(29). A wholly separate question--which Alex's paper does not seek to answer (see, e.g., footnote 357)--is whether Article III nevertheless prohibits a military, as opposed to civilian, court from trying the offense. As this post explains, there are compelling reasons why Congress should receive less deference in that context.
Last Friday's D.C. Circuit ruling in the Khadr case provides yet another striking illustration of how misbegotten an experiment the Court of Military Commission Review has turned out to be. As this post explains, not only does the CMCR suffer from inherent structural flaws that the political branches seem uninterested in fixing, but its substantive role in the military commission process has turned out to be not only woefully inefficient, but affirmatively counter-productive from both the government's and the defendants' perspectives. Simply put, the CMCR has become an object lesson in how not to create new non-Article III federal courts — and an expensive one, at that.
Oral argument in the case of Guantánamo detainee, Abd al-Rahim al-Nashiri, indicate that the critical issue of Councilman abstention may come down to a swing vote.