Summing up their history of the statutory Inspector General at the CIA, the authors conclude that “The ‘independent watchdog’ of a statutory IG did not expose major shortcomings that otherwise would have gone unnoticed. Nor did the watchdog play a major role in deterring institutional sloth and excess. In certain cases, however, the IG asserted independence that might not have been possible without Section 403q. Again, the results for the statutory IG may charitably be described as ‘mixed.'”
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.
The assessment of facts to determine if peacetime law or the law of armed conflict is the correct choice involves the same analysis used in resolving other choice of law questions. Lawyers and judges constantly make choice of law decisions. Choice of law is part of the consideration of every legal matter. … In the terrorism-related cases discussed [here], international law … determines the choice of law. In these cases, choice of international law sends us, generally, to the domestic criminal law of the United States, Pakistan, Yemen, and other states. It does not send us to the law of armed conflict.
The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure. There is something in the Court’s cases for both camps. Before 9/11, the Court deferred to the legislature’s attempts at promoting security. This inclination, however, changed dramatically in the post-9/11 period. In a string of cases the Court has consistently invalidated national security legislation for failing to adequately take account of constitutionally protected liberty interests.