Decisions on two legal challenges to the Guantanamo military commissions system, both expected this summer, could undo half the convictions won so far before the tribunals and disrupt a number of pending cases.
The appeals of two 2008 convictions attack several core aspects of the young trial system. One potentially explosive argument is that the most commonly charged offenses -- conspiracy and providing material support for terrorism -- are not war crimes that can be tried in a military court.
The government insists there is longstanding precedent for prosecuting these acts through military justice. "Terrorism, though perhaps often by other names, is undoubtedly a war crime," Edward White, a Navy lawyer who represents the government in one of the appeals, wrote in a brief. Violators, he added "were historically liable to be shot immediately upon capture."
These convictions occurred during the Bush administration, but not withstanding the rather obvious risks, Congress still decided to include material support and conspiracy among the chargeable offenses in the new military-commissions legislation despite warnings that might cause serious problems that wouldn't occur in federal courts.
When he testified before the Senate Judiciary Subcommittee on Terrorism and Homeland Security last week, Assistant Attorney General [David] Kris also asked that the Senate remove provisions from the bill that allow material support for terrorism charges to be tried by military commission, because "there is a significant likelihood that appellate courts will ultimately conclude that material support for terrorism is not a traditional law-of-war offense, thereby threatening to reverse hard-won convictions and leading to questions about the system's legitimacy."
The "military commissions only" position on terrorism cases is mere culture-war counterterrorism. It's untenable as actual policy, and anyone who advocates for that approach should have to defend it in light of the rather obvious and predictable problems that are now coming to bear.