A Critical Assessment of the New Department of Defense Law of War Manual

The abstract for Professor David Glazier’s article Critical Assessment of the New Department of Defense Law of War Manual appears below. The article was co-written with Zora Colakovic '16, Alexandra Gonzalez '16 and Zacharias Tripodes '16.

In June 2015 the Department of Defense (DoD) General Counsel issued a 1,200 page manual providing unified guidance on the law governing armed conflict. Unfortunately, despite such positive attributes as an unequivocal condemnation of torture, it is badly flawed. Sporadic criticism, notably media outrage over its treatment of the press, led DoD to issue a slightly revised 2016 version, mostly making cosmetic changes to language about reporters.

This article provides the first comprehensive critique, noting the manual’s uncertain hierarchical status or legal effect given its express disclaimer to not “necessarily reflect...the views of the U.S. Government as a whole.” Stylistically, it is twice the length it should be, suffering from unnecessary repetition and internal inconsistencies.

The manual’s substantive shortcomings are more significant than its literary vices, including basic errors in international law and idiosyncratic views that are outdated, unsupported by credible authority, or even counter to larger U.S. interests. Its treatment of proportionality, for example, endeavors to shift the greater burden for avoiding civilian casualties from the attacker to the defender. It makes a poorly supported claim of a U.S. right to use expanding bullets despite widespread recognition as a war crime. And it fails to enumerate which provisions of, the First and Second Additional Geneva Protocols of 1977 (AP I and II) – are binding on U.S. forces even though that was the original impetus for developing a joint U.S. manual.

The article concludes that the volume should be officially withdrawn until it can be brought up to an appropriate professional standard, or replaced with a manual more faithfully serving the law, U.S. military forces, and America’s true national interests.

Read the full article on SSRN

The MSF Airstrike Report: Better on the Facts Than on the Law

By: Professor David Glazier
This op-ed originally appeared on Just Security.

The military’s investigation of the October 2015 airstrike on the Médicins Sans Frontières (MSF) hospital in Kunduz, Afghanistan was back in the news last week thanks to highly speculative accounts that unidentified Afghans might have manipulated US forces into attacking the facility. While there is little doubt many Afghan officials harbored substantial resentment over MSF’s willing treatment of Taliban fighters, to my reading, the investigation report logically discredits this conspiracy theory.

The facts show that Afghan personnel requested the attack by providing geographic coordinates corresponding to a legitimate military objective, an Afghan National Directorate of Security facility, under the control of Taliban forces. It was only due to a series of cascading, and wholly unforeseeable, breakdowns in US communications, equipment, and procedure, that the aircrew inadvertently selected the hospital — located approximately 1,500 feet away from the intended target — as the location to be struck. To conclude that one or more Afghan officials cunningly manipulated the aircrew into attacking the wrong target based on a deliberate misdescription in the fog of a multi-party (and presumably multi-lingual) relay of information at oh-dark thirty in the midst of a multi-day battle in order to have the MSF facility struck simply defies logic. Particularly given that they’d be diverting the fire away from the site that they were tasked to assault, significantly increasing the risk to their own lives by failing to “prepare the battlefield.”

Prof. Glazier's Amicus Briefs in Military Commission Case Finds Influential Audience

As reported in an earlier post on Summary Judgments, Professor David Glazier has filed two amicus briefs in support of Abd al-Rahim al-Nashiri, the high-profile Guantanamo detainee. Now, the merits of the arguments contained in those briefs are addressed on LawFare.

Excerpt:

Both amici address the unintended consequences of allowing the government to treat the existence of hostilities as a factual question subject to retrospective determination. They both argue that perceptions of the legitimacy of our military courts system affect the security of our armed forces. The RMAG amicus argues that reciprocity is a key determinant in ensuring the safety of US troops that are captured abroad, citing as evidence of the power of reciprocity and legitimacy the fact that 99% of U.S. war prisoners in Germany during World War II survived.

Prof. Glazier Files Amicus Brief in Nashiri Military Commission Trial

Professor David Glazier recently filed an amicus brief with the U.S. Court of Appeals for the District of Columbia in the case of Abd al-Rahim Hussein Al Nashiri v. Barack Obama, et. al. 

Excerpt:

Domestic and international law have confined military commission jurisdiction to acts taking place during, and directly related to, an ongoing armed conflict. Acts subject to military commission jurisdiction constitute serious violations of the law of war which have recognized penal sanctions associated with their violations, commonly called “war crimes.”

Abd al-Rahim Hussein Al Nashiri ("Nashiri") is facing military commission trial at the U.S. Naval Station at Guantánamo Bay for three incidents that transpired in or near Yemen between 2000 and 2002: the attempted bombing of the USS The Sullivans on January 3, 2000; and the completed bombings of the USS Cole and the French tanker M/V Limburg on October 12, 2000 and October 6, 2002, respectively.

The military commission seeks to try Nashiri for nine charges defined by the Military Commissions Act of 2009, Pub. L. 111-84 §§ 1801-1807 (2009) ("2009 Act") (codified at 10 U.S.C. §§ 948a, et seq.). While charges based on the attempted attack on the USS The Sullivans and the completed attacks on the USS Cole and French tanker M/V Limburg qualify for federal criminal prosecution by Article III courts, these acts fall outside the recognized scope of an armed conflict, a necessary prerequisite for law of war military commission jurisdiction. As detailed below, the United States was not involved in armed conflict during the timeframe of the earlier incidents, nor does the post-9/11 attack on the Limburg, a French tanker under charter to a Malaysian entity, fall within the scope of any armed conflict. Charges based on these incidents thus cannot constitute “war crimes” and fall outside both the constitutional jurisdiction of the military commissions and the statutory ambit of the 2009 Act which limits the commissions to trying offenses “committed in the context of and associated with hostilities.”

Read the full brief below.

Doctors Without Borders Strike a Tragedy, Likely Not a War Crime

By Professor David Glazier

As tragic as the strike on the Médecins Sans Frontières (MSF) hospital was, it is extremely unlikely to constitute a war crime -- at least under the definitions found in the Rome Statute of the ICC -- regardless of whether the conflict is characterized as an International Armed Conflict (IAC) or Non-International Armed Conflict (NIAC). It is important to note upfront that in the "real world" (and by that I mean everywhere in the world except the Guantanamo military commissions) it is recognized that the law, and more specifically the conduct which falls within the scope of recognized war crimes, differs, by conflict type and thus conflict classification is a required element of proof. The Rome Statute, for example, defines 34 war crimes recognized in IAC (Art 8, sections 2(a) and (b)), but only 19 for NIAC (Art 8, sections 2(c) and (e)).

Deliberately attacking civilians, or a protected facility such as a hospital, is a war crime in both IAC and NIAC. But conviction requires demonstrating both knowledge of the protected status and a deliberate decision to attack it nevertheless. What is more likely to be the case here is that either (1) through some sort of procedural error or negligence, in the heat of the moment of the attacks, either or both the folks on the ground calling in air support, and the aircrew, failed to note the protected status of the facility; or, (2) the folks on the ground were receiving sufficient incoming fire from the hospital grounds that they (and/or the aircrew) decided that it had been converted into a legitimate military object by this misuse and lost its protected status.

In either of these cases, the U.S. participants would lack the requisite mens rea to be convicted of a deliberate attack on protected objects or persons.

Al Bahlul, Conspiracy, and the Misuse of History

By Professor David Glazier

This piece originally appeared on Lawfare.

The oral arguments in Monday's D.C. Circuit en banc review of Ali Hamza al Bahlul's military commission conspiracy conviction essentially came down to competing views of history. The government concedes that conspiracy is not a recognized war crime under international law. But rather than accepting chief prosecutor Brigadier General Mark Martins' plan to move forward using more credible charges, the Justice Department argued that the Guantánamo commissions can try conspiracy based on historical U.S. practices. Relying largely on research by prosecution team member Haridimos Thravalos (discussed on Lawfare here and here), the government asserts the existence of a "domestic" U.S. law of war which includes conspiracy to overcome concerns that its initial codification in the Military Commissions Acts of 2006 cannot be applied retroactively. Al Bahlul naturally disagrees.

After reviewing each authority cited by Thravalos' article and the government's briefs, I believe that al Bahlul has the best of this argument for reasons I expressed to the court in an amicus briefand have more fully developed in a draft law review article available here. As I see it, there are two basic flaws in the domestic law arguments:

(1) Virtually every credible reference to the law of war, including the sources the government relies on, describes the law of war as being part of international law. 

(2) None of the cases cited as domestic "law of war" conspiracy prosecutions really stand up to exacting scrutiny. On closer examination, each one seems to (a) represent the prosecution of completed, rather than inchoate, conduct; (b) ground the conspiracy charges in domestic legal jurisdiction under martial law or military government rather than the law of war per se; or, (c) use conspiracy as a mode of liability rather than charging conspiracy as a substantive offense.

Attraverso Review: Wired for Culture: Origins of the Human Social Mind by Mark Pagel

By Professor Jeffery Atik

Mark Pagel addresses the conundrum posed by variegated cultures. Culture -- what we have that monkey's don't (according to a witty formula quoted by Pagel) -- both unites us and divides us. In Wired for Culture, Pagel attempts an evolutionary account for the existence of cultures. His inquiries commence with the mad multiplicity of languages. Language is the prime instrument of cultural transmission and the strongest marker of cultural identity. Yet the intra-group facilitation of communication provided by distinct languages are foreclosed to outsiders. Our languages seal us off from one another.

Human adaptability to the widest range of niches offers only a partial explanation for the multitude of cultures. New Guinea sports more than 800 different languages within a very small territory -- here mutual unintelligibility seems to be the point. Language operates both to permit and prevent understanding; both these characteristics are necessary. The value of a closed system of communication has long been recognized. Tradesmen, criminals and academics use argot to separate themselves and to keep secrets.

Pagel makes an evolutionary case for the multiplicity of languages; language serves as an identifier of group membership. This is culture's darker role: defining group boundaries. Pagel sees language and other cultural institutions functioning to set limits for altruism. Humans are social -- but only to a degree. We are a species that engages in magnificent cooperation -- yet are capable of inflicting harm on a scale not found in any other species.

Guantánamo Arraignment - You Had to be There (Or not?)

By Professor David Glazier

Having spent five days on the road (one day each way flying between LA and D.C. and three days in Guantánamo) to attend a 13 hour hearing (at least I got my money's worth there!) on behalf of the National Institute of Military Justice, one has to ask, "Was it worth it?" Is there sufficient value from "live" observation when one can read the transcripts or watch from a remote site to justify the time and expense of traveling to Cuba? I will describe what I got from the observation experience and let others decide. To at least whet your appetite, let me say now that the proceedings I observed differed a bit from the impression created by media reports.

Just getting to Guantánamo gives one perspective on the challenges confronting military commission attorneys, particularly defense attorneys, on a regular basis, including the multi-day lead time for travel approval and the requirement to show several hours before flight time in classic military "hurry up and wait" style. And there is nothing like flying in 20+ year old aircraft operated by low-budget charter operators you've never heard of to inspire confidence. (U.S. troops deploying overseas also frequently get to travel this way.) And of course, you come and go not when convenient, but when these irregular flights are scheduled.

Next I got to experience the curious realities of military commission security. You must present a passport -- the only form of ID accepted -- at a checkpoint where you are validated against the pre-approved entry list and undergo a traditional security screening -- X-ray of all possessions; metal detector/wand of your person; before being led a short distance to a second location where this entire process is repeated in full. (Imagine if TSA tried to adopt this approach.) Only then are you allowed to proceed to the courtroom gallery entrance where you show your passport a third time and receive an individual seat assignment. I'm tempted to conclude from this passport fetish that these are actually foreign courts. Observers cannot bring any pens, pencils, electronic devices, notebooks, etc. with them - courtroom staff provides loaner writing implements and plain white pads. If this is how U.S. nationals, physically separated from the courtroom by a glass wall are screened, claims that defendants experience much more rigor, including strip searches, seem entirely credible.

A real value added from traveling to Guantánamo is the ability to see the full courtroom, from before the arrival of the detainees (observers had to start our entry process a full hour before the scheduled start time), until the completion of the trial day. Observers sit in a soundproof glass booth listening to the same 40-second time delay as remote observers, and have video monitors showing the same picture. It is generally less surreal to watch the monitors, so what you hear and see match up. But there is merit to being able to see what is happening throughout the courtroom rather than just the view of the currently speaking participant offered on the monitors.

Observations from the Guantánamo Arraignment

By Professor David Glazier

The experience of observing Saturday's military commission arraignment of the five alleged 9/11 conspirators in Guantánamo Bay, Cuba on behalf of the National Institute of Military Justice left me with serious concern that systemic issues, many involving "outside" agencies, particularly Joint Task Force Guantánamo (JTF), are likely to preclude the exercise of meaningful attorney-client coordination. This in turn will call into question whether these trials are sufficiently fair as to merit contemporary, and ultimately historical, public approval. These concerns are separate from any issues about the substantive law being applied; my comments in this post are limited to matters observed at Guantánamo.

First let me acknowledge some positive points. The government has promised greater transparency in the commission process, and the establishment of additional remote sites where the trial can be viewed as well as the unprecedented same-day internet posting of unofficial trial transcripts (from this link one must go to "Khalid Shiek Mohammed et al. 2 and then to "transcripts") are both good news in this regard. And on some matters Judge Pohl went out of his way to demonstrate "fairness" to the defendants, announcing recesses for prayer times sua sponte, pausing the trial to allow conversion from the planned simultaneous Arabic translation via headphones to sequential translation broadcast via overhead speakers, saying nothing about Bin Attash's offensive paper airplane, tolerating prayers at times other than actual prayer times, etc. While quality translation is essential to a fair trial where not all defendants speak adequate English, most observers, even commission critics, thought Pohl actually went too far in most of these accommodations. There was unanimous agreement among trial observers with federal practice experience that no U.S. federal judge would have tolerated such breaches of courtroom decorum as unscheduled prayers or defendants making paper airplanes, and few, if any, federal courts would have recessed for prayer times falling outside reasonable mealtimes.

But the obvious "considerations" extended the defendants mask broader concerns which threaten the trial's ultimate credibilty. As a matter of law, these need not necessarily have been addressed Saturday. Colonel Pohl was likely on solid legal ground in deferring the motions that defense attorneys repeatedly tried to push forward until the next court session in June. And some of the defense concerns may well lack objective merit -- there are always two sides to every story. Nevertheless, the aggregate impression I came away with was that the defense had a number of legitimate issues about detainee treatment impacting their ability to mount a defense that were not merely frivolous attempts to delay the proceedings. Deferral of these issues, even if legally permissible, now impacts their ability to press ahead with trial preparation, and may introduce further delay into a trial the judge unilaterally suggested was still at least a year away.

Guantánamo Military Commission Pre-Arraignment Press Conferences

By Professor David Glazier

I am currently in Guantánamo as the National Institute of Military Justice (NIMJ) observer at the scheduled May 5 arraignment of the five alleged 9/11 co-conspirators. Tonight I had the opportunity to attend back-to-back press conferences by James Connell, the civilian "learned counsel" representing one of the five defendants, Ammar al Baluchi, also known as Ali Abdul Aziz Ali, and the second by Chief Prosecutor Mark Martins, whose prepared statement is already posted at the Lawfare Blog.

Connell addressed the long delay in the prosecution and previous false starts, suggesting that Saturday's arraignment marked only the beginning of a multi-year process that could still be in progress in ten years time should the Supreme Court strike down the new military commissions as they did once before. But most of his discussion focused on the secrecy of the proceedings, and how he was legally prohibited from saying anything at all about his client's intention because of the government's insistence that anything a detainee formerly held in CIA custody said was presumptively classified at the Special Compartmented Intelligence (SCI) level. The ACLU has filed a motion that I think does an excellent job of addressing the impact of this approach on the public's right to know (full disclosure -- I authored a supporting declaration on historic military commission practice but played no role in drafting the actual motion). But the major adverse impact this secrecy has on Guantánamo defense teams' ability to represent their clients is a topic significantly underreported to date, and Connell's remarks only scratched the surface of the issue.

Connell also explained the one significant development today -- the military judge had intended to conduct an informal session with only counsel present (called an "802 hearing" after the Military Commission Rule 802 addressing the subject). The judge's staff began notifying the defense counsel of his intention, and according to Connell, attorneys for the first two detainees who were notified both said they would come only if the hearing was recorded so that it could eventually be included in the formal trial record. Shortly thereafter word was sent to the attorneys that there would be no 802 hearing today, meaning that tomorrow's arraignment will proceed without any formal pre-coordination

Connell was followed by Chief Prosecutor Martins who gave a polished defense of the commissions' fairness. I think it odd that the individual charged with prosecuting the defendants has taken upon himself the role of head cheerleader for the commission process. One might remember that Morris Davis did this several years ago in his tenure in that job, resulting in significant complaints about his extrajudicial commentary that would have been a subject of some judicial discussion had David Hicks not cut it off by pleading guilty. And Martins should have his focus on fulfilling his ethical responsibilities to do justice in the prosecutions -- the Convening Authority certainly can call on other resources such as his own public affairs staff to defend the commissions.

SOFAs (status of forces agreements) in spotlight in wake of Aghan shootings

By Professor David Glazier

The U.S. government's decision to move Staff Sergeant Robert Bales, accused of killing 17 Afghan civilians during an unauthorized nighttime foray, out of Afghanistan raises questions about criminal jurisdiction over American military personnel abroad. While popular Afghan demands for his local trial are understandable, the U.S. military's actions seem consistent with its legal obligations.

Historically military forces abroad enjoyed complete sovereign immunity and were subject to local criminal or civil liability only with the consent of their government. Traditional concepts of sovereign immunity started to break down in the twentieth century, however, and during a time of expansion of permanent overseas bases, nations began negotiating "status of forces agreements" (SOFAs) to clarify legal jurisdiction over their military personnel in foreign territory.

The North Atlantic Treaty Organization (NATO) SOFA, negotiated between the alliance states in 1951, is representative of typical modern treaty provisions. It recognizes exclusive jurisdiction on the part of the parent nation (sending state) for offenses which are service-unique, such as desertion or disobedience of orders, as well as for conduct which is only a crime under the law of the sending state. Conversely, it recognizes exclusive jurisdiction of the host nation (receiving state) over offenses which violate its laws, but not the law of the sending state. There is concurrent jurisdiction over all other offences. The SOFA addresses this overlapping authority by assigning primary jurisdiction to the sending state in cases involving offences against its security, property, or its own nationals; as well as offences arising out of acts "done in the performance of official duty." The receiving state is given the primary right to exercise jurisdiction in all other cases, although it is not uncommon for foreign countries to agree to U.S. military trials even where the SOFA gives them primary jurisdiction.

Wrong Court, Wrong Charges: Major Flaws in USS Cole Bomber Prosecution

By Professor David Glazier

The Department of Defense announced the approval of military commission charges against Abd Al Rahim Hussayn Muhammad Al Nashiri, who it alleges to have masterminded the USS Cole bombing, on September 28, 2011, clearing the way for his arraignment and subsequent trial in a Guantánamo courtroom. Al Nashiri will face nine separate charges and a possible death sentence. Having been in command of a U.S. Navy guided missile frigate the day the Cole was struck, I am particularly eager to see justice done for this act of terrorism. But having spent most of the decade since 9/11 studying the law of war in general and military commissions in particular, I firmly believe that these are the wrong charges before the wrong court.

A military conviction will both require a strained application of the law of war and establish dangerous legal precedent that could put American military personnel at greater future risk. The Supreme Court has determined that military commission jurisdiction is strictly limited to conduct taking place during the period of an armed conflict. This is easily satisfied by acts on and after September 11, 2001 thanks to the congressionally enacted Authorization for the Use of Military Force (AUMF). But to hold that the October 2000 Cole bombing, as well as the earlier failed attack on the USS The Sullivans, took place during an armed conflict requires conceding to al Qaeda the nation-state's prerogative to declare hostilities. Since a warship is a lawful object of attack, we can then object only to the means used, not to the attack itself. Ruses, including the use of false flags, are permitted in naval warfare, allowing al-Nashiri to raise defenses wholly irrelevant in a federal terrorism prosecution, which would fairly hold that any pre-9/11act of violence against Americans, military or civilian, was a serious crime regardless of how conducted. Moreover, such a precedent would logically allow future terrorist groups to announce they were at war with the United States and lawfully kill our service personnel if they adopted means compliant with the law of armed conflict.

There are also very serious issues with the charges themselves that could well result in any convictions being overturned on appeal. The core justification for the multiple charges based on the Cole attack is that they involved perfidy by using a civilian boat, dressing in civilian clothing, and "waving at the crewmembers onboard." Nothing in the law of war requires naval forces, as distinct from land and air forces, to wear uniforms, while the prosecution's assertion that waving to a U.S. Navy ship now constitutes a war crime threatens to make a justifiably proud military force into the butt of jokes around the world. But the biggest problem with the charge is that the crime of perfidy requires inducing the adversary to falsely believe that the attacker is entitled to special protection under the law of war. It is logically impossible to do this to persons who do not know they are at war, as was true of the Cole and The Sullivans crews, who understood that they were making peacetime refueling stops and who were operated under U.S. peacetime rules of engagement and antiterrorism instructions, not the law of armed conflict. The United States has consistently treated the Cole as a peacetime matter, launching only FBI agents in response, denying the crew awards for combat valor, and assessing the performance of captain and crew against peacetime standards, all of which the defense will fairly argue should bar ex post facto reclassification of the bombing as part of an armed conflict.

Prof. Glazier asks (and answers): Was killing Osama bin Laden legal?

By Professor David Glazier

Although Osama bin Laden's killing has received general public approval from the American public, its legality has been questioned. A fundamental challenge is identifying the set of legal rules that applies. Was this an effort to capture the FBI's most-wanted terrorist, to be judged by the standards of international human rights law? Or was it a strike against an opponent in an armed conflict, judged according to the law of war?

Read the entire op-ed at SFGate.com, the website of the San Francisco Chronicle.

A Critical Assessment of the New Obama Executive Order on Detention

By Professor David Glazier

The White House released an Executive Order (EO) yesterday establishing new administrative review procedures for those currently held at Guantánamo and not actually being criminally prosecuted. The order has generated a wide range of responses. Attorneys representing Guantánamo detainees and organizations like the ACLU, which contest U.S. legal authority to indefinitely detain anyone, are predictably upset that the Obama administration would give new life to this policy.

Commentators like Brookings' Ben Wittes, who have argued for statutory authorization of indefinite detention with little apparent concern about whether that would comport with either the Constitution or international law, are generally pleased. I fall into a seemingly lonely middle ground, recognizing that the new EO modestly improves U.S. policy but disappointed that the administration failed to seize the opportunity to solidly ground its conduct n the law of war (LOW).

The key assumption underlying the EO is that the United States remains in an armed conflict with al Qaeda and the Taliban, justified under international law as self-defense in response to 9/11 and authorized under domestic law by the September 18, 2001 Authorization for the Use of Military Force (AUMF). Many critics still contest this view although it was settled as a matter of U.S. law by the Supreme Court's decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), effectively holding the AUMF to be the functional equivalent of a declaration of war and authorizing exercise of such "fundamental incidents" as indefinite detention of adversarial fighters.

Prof. Glazier speaks at "Torture in a Time of War" event

Loyola Law School hosted "Torture in a Time of War: Legal Remedies and Ramifications," an exploration of litigation and human-rights issues that can arise from wartime atrocities, from 12-1 pm on Thursday, Jan. 13 on its downtown L.A. campus. The discussion touched on possible criminal and civil remedies available in instances such as the abuses that took place at Iraq's now-infamous Abu Ghraib Prison. Portraits drawn from the lives of former Abu Ghraib detainees, soon to go on exhibit at the Laband Art Gallery at Loyola Marymount University (LMU), will serve as a launching point for the discussion.

The panelists were Professor David Glazier, a former U.S. Navy surface warfare officer and expert on the rights of military detainees; Rosemary Healy, a former human rights attorney at Burke O'Neill PLLC who worked on class action suits against private security corporations like Blackwater Worldwide; and Carolyn Peter, director of the Laband Art Gallery.

The panel discussion coincides with the opening of "Bearing Witness: Daniel Heyman," an exhibit featuring the work of Heyman and writer Nick Flynn, who sat in on the interviews of dozens of former Abu Ghraib detainees. The exhibit will run from Jan. 15 to March 13 on the LMU campus. Related events include "Immigration to the U.S.: Legal Challenges," to be held from 12-1 p.m. on Tuesday, Feb. 22 at Loyola Law School. The event will feature Associate Professor Kathleen Kim, an immigration law expert, and Peter, who will introduce a series of portraits of new immigrants as a take-off point for the talk.

Watch the video. (Requires RealPlayer. Free download available).

With prosecutions of Guantanamo terrorists, 2011 a critical year

By Professor David Glazier

As my contribution to the ""11 on '11" discussion, I would like to identify one of the most significant challenges facing the U.S. government next year as being how to prosecute Guantánamo detainees for terrorism-related offenses. The issue is particularly key right now because the House of Representatives recently voted an outright ban on the transfer of detainees from Guantánamo to the United States for any reason. A logical consequence if this measure should become law would be that it would lead to more military commission trials.

Although the government has successfully prosecuted several hundred suspected terrorists in federal courts since 9/11 while securing only five extremely problematic "convictions" at Guantánamo, there is a persistent myth that military commissions are a superior forum for trying terrorists. This has been fueled recently by media spin on the federal court trial of Ahmed Ghailani in New York. Although Ghailani was convicted of a serious offense and will probably receive a life term when he is sentenced in January, both conservative critics and mainstream news outlets have chosen to describe the outcome as a "near acquittal" rather than the substantial victory it represents, particularly given the fact that the defendant was held in CIA black sites and subject to coercive interrogation, if not outright torture.

Despite popular perceptions to the contrary, it is the military commissions which pose much greater risk of failure in terrorism trials. Their serious legal flaws provide a number of grounds on which convictions can (and objectively should) be overturned while their ad hoc proceedings with rules made up on the fly have regularly proved embarrassing to the government and threaten to compromise larger national interests. I address these issues in much more detail in a draft article entitled "Still a Bad Idea: Military Commissions Under the Obama Adminstration."