Why I Don't "Trust" the Military Commissions (And You Shouldn't Either...)

In a characteristically thoughtful post, my friend (and, in his words, "long-time sparring partner") Charlie Dunlap takes me to task for some of my comments in last week's Lawfare podcast with regard to the D.C. Circuit's June 12 decision in al Bahlul--and what it portends for the Guantánamo military commissions. To be sure, most of Charlie's post is actually directed to the editorial board of the New York Times, and why, in Charlie's view, it ought not to be quite as sanguine with respect to the virtues of civilian terrorism prosecutions. But Charlie saves some of his criticism for me, and my suggestion that part of what the D.C. Circuit's decision reflects is a lack of "trust" in the military commissions--and in its judges, in particular. As Charlie writes, "do we need . . . to question whether or not we could have trust in the military judges (and, presumably, others) involved in the commission cases? Well, I think the public trusts the military, and in a democracy that should matter." Moreover, Charlie argues, such trust is justified because "[w]ar is different, and the crimes it produces arise from a milieu that is quite unlike the civilian world so familiar to Article III courts. . . . Thus, to my way of thinking, truly understanding war crimes requires a keen understanding of – if not experience in – war itself, something Article III courts – and their juries – often lack."

Unfortunately, Charlie's response misses both the text and context of what I was saying. And because I imagine most readers won't actually listen to last week's podcast (I can't say I blame you), let me lay out, as precisely as I possibly can, five reasons why I don't trust the military commissions to prosecute domestic offenses such as conspiracy and material support--and why you (and Charlie) shouldn't, either:

1. The Absence of Precedent. As al Bahlul helpfully explains, when it comes to precedent for trying domestic offenses in law-of-war military commissions, there isn't exactly a whole lot of reliable precedent--which is to say, there isn't any. As a result, in case after case, the military commission's trial judges have had to reinvent the wheel on legal issues ranging from the mundane to the momentous. And so, even if Charlie is correct that "truly understanding war crimes requires a keen understanding of – if not experience in – war itself, something Article III courts – and their juries – often lack," it's worth stressing that this argument only holds for international war crimes that have historically been subject to military adjudication--i.e., the species of military commission jurisdiction to which I do not legally object. Whether one thinks al Bahlul is rightly decided or not, it's not as if the current crop of military judges has any experience presiding over military commission trials of domestic offenses (as compared to their Article III brethren, who, as Judge Tatel pointed out in his concurrence, have loads of such experience). So yes, Charlie--I don't trust judges to literally make it up as they go along, even if they're otherwise the noblest, most trustworthy jurists this side of [insert appropriate long-dead Supreme Court Justice here].
2. The Unclear Constitutional Foundation. That there's no precedent for trying domestic offenses in a law-of-war military commission might not be so alarming if the constitutional underpinnings of such trials were more clearly established. But as is hopefully well-known to readers by now, it remains an open question whether (and to what extent) most provisions of the Constitution, including, as especially relevant here, the Fifth, Sixth, and Eighth Amendments--even apply to these prosecutions. It's a lot easier to trust a judge when one is confident that the judge's rulings are set against a fixed constitutional backdrop. But when it's 2015 and it's still not clear whether even the Sixth Amendment right to counsel applies to the commissions, then yes, Charlie, I don't trust military judges (or even appropriate long-dead Supreme Court Justices) to fashion governing rules against a backdrop of an ever-uncertain constitutional foundation.
3. The Dangers of Article III Functionalism. Charlie writes that "the public trusts the military, and in a democracy that should matter." For better or worse, we don't live in a democracy. We live in a constitutional republic. And part of why the Constitution draws certain lines (including, as relevant here, Article III's line between permissible and impermissible non-Article III adjudication) is because we don't trust democratic process (as opposed to non-Article III judges) when certain constitutional interests are at stake. This is also why it's so important, as I explained last week, to apply formalism, as opposed to functionalism, when assessing the proper scope of non-Article III military jurisdiction. After all, it's entirely possible--if not likely--that in any individual case, the relevant actors, including the judge, will be sufficiently trustworthy (or, in al Bahlul's case, the defendant will be so unsavory) such that we just won't "mind" having the case resolved by a non-Article III adjudicator. But that's precisely when trust becomes so dangerous. As Chief Justice Roberts so forcefully put it four years ago, "We cannot compromise the integrity of the system of separated powers and the role of the Judiciary in that system, even with respect to challenges that may seem innocuous at first blush." So yes, Charlie--I don't trust non-Article III judges of any stripe to protect the unique role of the Article III courts in our constitutional republic, at least at a structural level. And because I don't trust them at a structural level, I can't trust them even when they do right by an individual case.
4. The Contested Ability to Self-Correct. One of the most important ways judges earn trust is by showing that they're aware of, and will endeavor to correct, their own mistakes. In the federal system, this is one of the reasons why a little statute called the All Writs Act is so vital to the orderly flow of federal litigation--it allows courts of limited subject-matter jurisdiction to nevertheless exercise a species of common-law authority where necessary to effectuate judgments, preserve jurisdiction, or otherwise protect the integrity of the judicial process. And as I've written before, perhaps the crowning achievment for the court-martial system was the Supreme Court's recognition, in 2009, that it has the power to self-correct through the All Writs Act--largely because, as Justice Kennedy put it, the "system Congress has designed" recognizes the ability and responsibility of the court-martial system to correct its own errors. Contrast that with the military commissions, where not only have the commissions not ever suggested that they have similar corrective authority, but where the Court of Military Commission Review--a "court created by Congress," for purposes of the All Writs Act--has a rule that provides that "Petitions for extraordinary relief will be summarily denied, unless they pertain to a case in which there is an approved finding of guilty and appellate review has not been waived." Perhaps yesterday's D.C. Circuit decision in al-Nashiri will convice the CMCR that it actually does have the authority to entertain applications for extraordinary relief under the All Writs Act (I'm not optimistic). But until and unless that happens, yes, Charlie, I don't trust the military commissions to correct their own errors--unlike every other federal court, including courts-martial staffed by the very same, trustworthy military judges.
5. The Ignominious Track Record. Finally, even if one is unmoved by each of the other reasons why I don't trust the military commissions to entertain prosecutions for domestic offenses, it seems to me that the commissions' track record, to date, should put this argument to rest. Consider the following:
   1. No military commission trial judge ever balked at the government's (initial) argument that conspiracy, material support, and solicitation were clearly established international war crimes, and so were properly within the jurisdiction of the military commissions.
   2. The CMCR unanimously affirmed the convictions in both Hamdan and al Bahlul, doing so en banc in the former case, and concluding in both cases, once again, that the crimes were clearly established international war crimes. Thus, nary a judge in the military commission system ever suggested the slightest skepticism over whether these offenses were traditionally subject to trial by military commission.
   3. All seven judges who sat on the en banc D.C. Circuit for last summer's decision in al Bahlul--including Judges Henderson, Brown, Kavanaugh, and Griffith--rejected the trial court's and CMCR's analyses of material support and solicitation. Indeed, four of the judges did so even under highly deferential "plain error" review. Thus, the en banc D.C. Circuit majority, led by Judge Henderson, held that every single military commission and CMCR judge to consider whether material support and solicitation were offenses traditionally triable before a military commission had not only erred, but had erred in a manner that was so patently clear as to be subject to correction under plain error review.

So yes, Charlie, I don't trust the military commissions to correctly answer some of the novel, complex legal questions over which they lack experience because, if their track record is any indication so far, not only have they failed to come to the same conclusions as their Article III supervisory brethren, but they've failed to even express any skepticism about arguments that were subseqently rejected under "plain error" review. That's not exactly confidence-inspiring, is it?

Don't get me wrong; I admire, with every fiber of my being, the valor, integrity, and dedication not just of all of the courageous men and women in uniform, but especially of those both in uniform and in civilian dress who have devoted so much time, energy, and passion into trying to make the military commissions as productive, defensible, and successful (by whatever metric) as possible--into trying to turn these lemons into lemonade. Indeed, if push came to shove, I'd probably trust most of these folks with my life--and with almost everything short of that. But I don't trust the military commissions, as such, to prosecute domestic offenses that have historically been the exclusive purview of Article III civilian courts. And just so Charlie doesn't loop me in with the editorial board of the New York Times, that's not because I think so highly of how the Article III courts have handled terrorism cases (anyone familiar with my writing should know better). Rather, it's because, unlike the military commissions, I trust the Article III courts to understand the signal importance of judicial review in protecting against the tyranny of the majority--and, as such, the tyranny of too much trust.