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Raha Wala on Military Commissions

Robert Chesney writes on Lawfare blog, in a post entitled "Raha Wala on Military Commissions," of the Human Rights First writer's skeptical view of the military commission system. 

Wala's thoughts are re-posted, in part, from Lawfare below: 

"And I strongly agree with one half of your central argument: that military commissions are not the “solution that their supporters imagine.”  Indeed, Human Rights First has for a long time pointed out that if the metric is number of convictions, or conviction rate, Article III federal courts have pretty convincingly trounced military commissions.  With that said, I disagree just as strongly with the second half of your central argument: that military commissions aren’t as bad as civil liberties advocates think. 

One reason I disagree is that I think we have different ideas in mind for what the appropriate baseline is for judging the merits of military commissions.  In presenting your case for why military commissions are not that bad, you note that the current legal architecture for the military commissions – the Military Commissions Act of 2009 – is a substantial improvement over its predecessors, in part because the Supreme Court forced the issue in Hamdan v. Rumsfeld.  You are right about this, but the first post-9/11 military commissions (which were problematic in too many ways to mention) are not, and should not be, the baseline for comparison.  Instead, the baseline is whether the military commissions are “regularly constituted court[s] affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” as is required by the Geneva Conventions.  And this, in turn, means that individuals accused of war crimes should generally be tried in the domestic courts available (Article III courts, or courts martial at the very least), not extraordinary courts with different, substandard judicial guarantees"

For the full text of the post, click here


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