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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.

The Least Worst Venue

Robert Chesney writes in Foreign Policy magazine on January 21, 2011, in an article entitled, "The Least Worst Venue," that the Obama administration's plan to resume military commission trials for Guantanamo detainees isn't as terrible as civil liberties advocates think.

Chesney writes, "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." Indeed, Chesney writes, the new lean towards reigniting the commissions should not come as a surprise:

"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 Guantanamo 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."

Chesney writes that the most limiting factor for Commissions may lie in the substantive crimes that may be charged:

"The biggest outstanding question about the new commissions, however, is whether they are actually useful for the sorts of crimes that we most need military commissions for. Arguably the most important charges that are likely to come before a commission are the crimes of conspiracy, unlawful killing in war, and providing material support. Versions of each of these offenses are well established in civilian criminal law; whether they can legitimately be tried in a military commission, however, has long been the subject of hot dispute, and if the answer turns out to be no, the usefulness of the commissions will be much reduced to say the least."

For the full text of the article, click here

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