Legal Commentary

With a tip of the hat to Dwight Sullivan at CAAFlog and to Bobby Chesney at Lawfare, let me be at least the third person to note today's decisions by several judges of the Court of Military Commission Review to recuse from deciding the pending appeals in Hamdan and al-Bahlul, both of which were argued to that court a year ago this Friday. 

I don't have any quibble with the reasons given by Chief Judge O'Toole for recusing. If anything, his is an admirable view of the need for these proceedings to be as hallowed and conflict-free as possible. Rather, my exasperation, like Bobby's, is with why it has taken so long for things to progress to this point. There are currently no other cases pending before the CMCR. There is no question that the party that loses in the CMCR will appeal (as of right) to the D.C. Circuit. And, under 10 U.S.C. 950g(d), the D.C. Circuit "may act under this section only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the [CMCR], and shall take action only with respect to matters of law, including the sufficiency of the evidence to support the verdict." In other words, the CMCR's decisions in these cases, whatever they are, won't have much of an effect on the D.C. Circuit, which would review legal issues de novo in any event. The only thing that matters is some decision from which the losing party can properly take an appeal.

As I wrote last year in an article surveying the merits of the jurisdictional issues, "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." Last week's news that the Administration is considering re-commencing the commissions adds only further urgency to the timely resolution of these questions. And yet, until and unless the CMCR decides these questions in Hamdan and al-Bahlul, and appeals are taken to the D.C. Circuit (and, perhaps, to the Supreme Court), those questions will remain unanswered.

Suffice it to say, the time has long since passed for the CMCR, however constituted, to do its job--and get out of the way.