Among the most notable but least appreciated points in President’s Obama’s much-analyzed recent speech on ending the long war against Islamist terrorists and closing the Guantanamo Bay detention facility was his endorsement of military commissions. Despite a checkered history and continuing criticisms, military commissions are playing and will continue to play a crucial role in the long war.
One might be forgiven for forgetting that military commissions are military courts with a pedigree stretching to the founding of the nation that are used to try enemy forces for war crimes and related offenses. When President Bush established modern commissions in November 2001 without consulting Congress or his National Security Council, he was widely criticized for violating separation of powers and for departing from ordinary standards of wartime justice. Both problems have been largely fixed in the ensuing dozen years, thanks to a Supreme Court decision, two congressional interventions, continuing federal court supervision, and a lot of hard work at the Pentagon. While some details in the shape of commissions continue to be challenged, today commissions satisfy the fundamental fairness guarantees of the Geneva Conventions and the structural commands of the Constitution.
President Obama has traveled a long road on commissions. He criticized them during the 2008 campaign and suspended their use at the dawn of his presidency. After an intense review, however, he concluded in 2009 that commissions were useful and necessary, and he charged his administration with improving their legitimacy. In his speech last month, the president insisted that suspected terrorists can be prosecuted in either civilian courts or military commissions, and he announced that he had asked the Department of Defense to designate a site in the United States for commission trials. On the heels of his speech, news reports suggest that the administration plans to use commissions to prosecute new detainees not already in Guantanamo Bay.
President Obama obviously did not embrace military commissions lightly. He did so because, as he explained in May 2009, they “allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.” Commissions have jurisdiction over a narrow class of defendants: non-citizen “unprivileged belligerents” who are captured abroad and charged with violations of the laws of war. In acknowledgment that the special nature of the defendants and the circumstances of their alleged crimes create practical evidentiary difficulties at trial, commissions depart from the usual civilian court procedures a bit for issues like hearsay, disclosure of sources and methods of intelligence-gathering, and the admissibility of confessions. These small but real differences are consonant with — and indeed, more defendant-friendly than — analogous departures from civilian standards in international criminal courts or in U.S. military commissions historically.