"Trial by military commission." The phrase warms the heart of some and chills the spine of others. To supporters, commissions are a legitimate and traditional tool for providing criminal justice in the context of war, however unorthodox or unfamiliar the contours of that war might be. They are, on this view, precisely what is needed to bring closure to the otherwise interminable saga of Guantánamo Bay, where 173 detainees remain in military custody. To critics, however, military commissions are kangaroo courts that cannot produce credible verdicts, fit only for prosecuting widely recognized war crimes committed in the course of undisputed armed conflicts.
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Framed in this way, the debate over commissions has raged off and on since President George W. Bush established the first post-9/11 commission system by military order in November 2001. And according to Charlie Savage's account in Thursday's New York Times and Dafna Linzer's detailed elaboration for ProPublica, we are in for yet another round in the very near future: Defense Secretary Robert Gates is reportedly poised to lift the moratorium on new military trials for Guantánamo detainees, a freeze that has been in place since President Barack Obama's inauguration in 2009.
Should the left despair? Should the right rejoice? Neither. The commissions are neither the monstrosities their critics sometimes suggest nor the solution their supporters imagine.
Nor is this latest development much of a surprise, for that matter. The Obama administration has supported some form of commission proceeding for some cases from the outset. The administration supported and signed the Military Commissions Act of 2009, for example, and Obama himself very clearly endorsed the use of commissions to prosecute some -- though certainly not all -- detainees during his famous speech on Guantánamo and detention policy at the National Archives on May 21, 2009. Later that year, the Justice and Defense departments agreed on a protocol for determining whether Guantánamo defendants slated for prosecution should be tried in civilian courts or commissions. That November, the administration released a list of five Guantánamo detainees to be prosecuted by a commission in accordance with those guidelines.
So why were Thursday's stories newsworthy? Because it appears that the commission leg of this two-track system now might be going forward by itself, even as the administration's efforts to bring detainees to trial in civilian courts seem to have all but ground to a halt. According to Linzer's story, administration officials previously had agreed to pursue new military and civilian prosecutions of Guantánamo detainees at the same time. As a result, the administration had held off on starting new cases in either system while it determined whether the civilian prosecution option would be viable (though two pending commission cases did proceed to the point of guilty pleas in the interim).
The aftermath of the prosecution of Ahmed Ghailani, an alleged al Qaeda conspirator captured in Pakistan in 2004 whose trial was the first test of applying the civilian process to a Guantánamo detainee, gave them an answer of sorts. On one hand, Ghailani actually was convicted on one count and likely will receive a lengthy sentence. But that conviction has been overshadowed to an extent by his acquittal on 284 other counts. Fairly or not, the near miss provoked a substantial political backlash against further reliance on civilian courts to prosecute detainees, an approach that had already become politically toxic in some quarters. Even prior to the verdict, the Democratic-controlled Congress had used its power of the purse to restrict the administration's ability to bring detainees into the United States and subsequently passed a law that wholly prohibits the use of Defense Department funds to transport them. As a result, the civilian prosecution option appears for the time being to be dead in the water, though Attorney General Eric Holder gamely asserted Thursday that all options remain on the table for detainees linked to the 9/11 attacks.
But this is hardly an unequivocal victory or defeat for either side of the Guantánamo debate. To be sure, the kangaroo-court critique civil liberties advocates level at the military commissions at one point had considerable merit. Bush established the first post-9/11 commissions without explicit congressional authorization, and the system was riddled with problems: Among other things, it permitted non-unanimous verdicts, no particular restraint on the admission of testimony obtained through coercion (or worse), and no role for the civilian federal judiciary or even military judges. But that was then. After the Supreme Court's 2006 decision in Hamdan v. Rumsfeld determined that commissions of this kind could not be established merely by presidential order, Congress stepped in to explicitly authorize a new commission system, one with substantially greater safeguards.
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