It is impossible to have a meaningful debate over whether a civilian court or a military commission is a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders. And yet, although a number of defendants have attempted to challenge the jurisdiction of the military commissions – especially under the MCA – none of their cases have managed to produce a decision on the merits from any court higher than the Court of Military Commission Review (CMCR). Instead, the federal courts have generally relied on ‘abstention’ doctrine, holding that challenges to the commissions, including to their jurisdiction, can – and should – be resolved on post-conviction appeal. … [T]he time has long since passed for a careful explication of the issues, the relevant precedents, and the most likely answers.
At the January 2009 Association of American Law Schools’ Section on National Security Law panel discussion, I and others urged the incoming Obama administration to make a clear and decisive break with the Bush administration’s national security policies. Six months later, the new Administration has not done so. Rather, it has acted in a contradictory manner: boldly asserting in its first days that it would ban torture and close Guantánamo, but in practice continuing many of the Bush antiterrorism policies. President Obama’s major speech on Guantánamo and other national security issues reiterated his desire to close Guantánamo, but also argued that the United States could hold detainees in custody indefinitely without trial or try them by military commissions. The Administration has adopted the Bush administration position that detainees held in U.S. custody in Afghanistan indefinitely have no right to seek habeas corpus in U.S. courts. It has also continued to assert the state secrets privilege to attempt to block lawsuits seeking accountability for extraordinary rendition and torture.
Several years ago, I began work on a project that I fancied to be both hypothetical and academic. In the aftermath of September 11, a number of commentators, including one prominent member of the legal academy, advanced the proposition that interrogation by torture in pursuit of terrorists should be viewed as permissible under the United States Constitution when undertaken with procedural safeguards. In an article published in 2003, I argued that these commentators were legally sloppy and morally obtuse: no matter what procedures accompany it, interrogation by torture is both at odds with settled constitutional law as it is and profoundly inconsistent with the legal system as it should be.