Beyond Guantanamo, Military Commissions and National Security Courts: Options and Obstacles

Gregory S. McNeal, Pennsylvania State University - Main Campus

Abstract

After the Supreme Court’s Hamdan decision Congress passed The Military Commissions Act of 2006 intended in part to remedy the structural shortcomings in prior military commissions created by Presidential Military Order. Implementing the Military Commissions Act has proven more difficult than reformers imagined. Most recently military commissions observers witnessed the high profile resignation of the system’s chief prosecutor, and Congress has recently held a series of hearings regarding the future of terrorism trials. These developments led some to question the long-term vitality of military commissions and others to propose the formation of a national security court. This essay seeks to frame part of that debate, first identifying structural flaws in the current military commissions system which will continue to undermine its legitimacy. Second, this essay identifies obstacles reformers will face in transitioning to proposed national security courts.

Importantly, this essay takes a narrow approach to these issues, largely forgoing a discussion of the important and related issue of detention, and instead focusing primarily on structural and administrative concerns. In Part I, I focus on military commissions, identifying three specific structural reforms necessary to improve them. In Part II, I focus on obstacles created by the current military commissions system which will affect the ability of Congressional reformers to abolish military commissions or even transition from military commissions to national security courts. My approach in this essay, while intended to stimulate academic commentary also has a larger audience, Congressional reformers who are currently exploring options to reform the nation’s system of terrorism tribunals.