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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

Judge Makasey on the Advantages of Military Commissions

On the Lawfare blog in an article entitled "Judge Makasey on the Advantages of Military Commissions," Robert Chesney reports on former Attorney General Mukasey's comments regarding the use of a civilian court rather a military commission. Mukasey observed that the verdict: 

"illustrate[s] the dangers and the — in this case, the unnecessary dangers, of using a civilian system that excluded a good deal of the evidence against him, obviously didn’t include all of the charges that were pending against him a before military commission."

Chesney comments that it is not likely that a commission would have been more amenable to admitting Ghailani's interrogation statements or derivative evidence. He comments that he has "not see much discussion, however, of the second point–i.e,. that a wider array of charges would have been available in the commission setting."

Mukasey elaborated later in the interview: 

"I have no quarrel with Judge Kaplan’s result, with his reasoning. I have very high regard for him. He’s a former colleague. But I have no doubt at all that the result would have been different in a military commission, and, certainly, there would have been additional charges before a military commission that could not be tried in this case, and of which this jury could not be made aware."

Chesney writes:

"So the claim is not merely that civilian prosecutors simply elected not to pursue certain charges (something which might reflect on their judgment but which would not tell us anything about the civilian criminal justice system), but rather that the charges were not viable in the civilian system.  If correct, that obviously is a significant consideration…but is it correct?  It’s not clear to me from the context why Judge Mukasey believes that certain charges had to be left aside.  If the argument is that the omitted charges depended on evidence that in Judge Mukasey’s view would have been admissible in a commission but not an Article III court, well, as noted above I do not think the case has been made regarding such a clear disparity in the evidentiary rules.  But the argument may turn on other considerations.  If so, I’d be glad to hear them (and post them)."

For the full text of the article, click here

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