The Fairness and Effectiveness of Military Commissions: A Response to Jack

In a characteristically thougtful essay over at Slate, and building on themes in his new book, Jack returns to a familiar argument--that the extent to which the Obama Administration has embraced military commissions is a telling example in continuity with, and validation of, the policies of the (later part of the) Bush Administration. Moreover, Jack writes, "The commissions, of course, still have critics who question their fairness and effectiveness. But the results emerging from commissions belie these criticisms." Although I've been thoroughly enjoying both Jack's book and his various opinion pieces building on its themes, I fear that this latest salvo is a bridge too far in several respects, which I elaborate upon below the fold. First, "fairness" and "effectiveness" are not the only relevant metrics for assessing the commissions. I would add "legality," which, to be clear, still has not been settled by any court higher than the Court of Military Commission Review, itself a creature of the Military Commissions Acts of 2006 and 2009. One need look only at the issues before the D.C. Circuit in the Hamdan and al-Bahlul appeals to appreciate just how little has been truly settled about the underlying validity of the commissions created by Congress, especially their power to try the offenses at issue in most (albeit not all) of these cases. So even if I were inclined to agree with Jack that the commissions are increasingly "fair" and "effective," that just isn't the sum total of the conversation. Second, and related, I don't think Jack comes close to demonstrating the "fairness" or "effectiveness" of the commissions, either in his Slate essay or in his book. For starters, I don't think it proves anything one way or the other that sentences in the military commission system have thus far been (on average) lower than those that similar charges have produced in the civilian courts. Just as I think it's a non-sequitur for those who defend the role of the Article III courts to point to convictions and long sentences as proof that they "work," as such, so too, one cannot assess the fairness of the commissions based on the fact that a small number of defendants have received comparably short prison sentences. Professor Paul Bator once decried such analysis as reflecting a "fundamental epistemological error." As he put it, "[t]he existence of institutions cannot be validated on the ground that in a particular case they arrived at a result correct in an absolute sense." Fairness in this context requires some more detailed assessment of the ability of defendants to make their case in general (including the ability of defense counsel adequately to provide zealous representation), of the independence of the courts in administering clearly established (and rational) rules in all cases, and of some kind of public belief that the results emerging from the commissions are grounded in justice, not vengeance or political expediency. We may well get there eventually--this is where perhaps I part company with my friends on the left; but I remain, at least to date, unconvinced. Ditto for the "effectiveness" of the commissions to date--an assessment that, to my mind, is belied by how long it has taken to get here, and how much still remains unsettled. Finally, even if I agreed that (1) fairness and effectiveness are the relevant metrics; and (2) they're increasingly satisfied by the present commissions, it still doesn't follow that, as Jack implies, this is a result of the Obama Administration effectively embracing the Bush Administration's commissions. On the contrary, we too often conflate the 2006 and 2009 Military Commissions Acts without appreciating some of the important structural differences between them. Some of the changes are cosmetic, but many aren't, as the comprehensive chart at the back (pp. 34-52) of this amazingly useful Congressional Research Service report indicates. Indeed, as I've explained to varying degrees previously, the real achievement of the Obama Administration on commissions is to quietly adapt the 2006 MCA to effectively resemble courts-martial, including with respect to the overlooked but critically important scope of post-conviction appellate and collateral review. To be clear, I don't believe that the 2009 MCA obviates some of the central objections to military commissions, as, for example, our amicus brief in al-Bahlul quite clearly indicates. But it certainly changes the conversation about why the commissions continue to raise fairness, effectiveness, and legality concerns--and, candidly, makes at least some of the objections harder to maintain. Jack (and others) may think that the distinctions between the 2006 and 2009 MCAs are semantic, and so the Obama Administration's continued use of the system is thereby an endorsement of its prior iterations; I respectfully disagree. And so if we're going to have a serious conversation about the extent to which the Obama Administration is merely "continuing" the policies of its predecessors (let alone what that implies about the past--or next--decade), let's also account for the myriad ways in which those policies have actually changed.