Ten years after 9/11, it is hard to remember that the decision to treat the attacks as the trigger for taking the country to a state of war was not inevitable. Previous acts of terrorism had been investigated and prosecuted as crimes, even when they were carried out or planned by al Qaeda. But on September 12, 2001, President Bush pronounced the attacks “acts of war.” The war paradigm reflected and reinforced core policy dispositions of the administration — the commitment to expanding presidential power, the conviction that the president’s authority in military affairs should not be constrained by law, and the desire to create a legacy as a great president, together with the belief that the great presidents have tended to be “war presidents.”
President Obama campaigned on the very different paradigm of the rule of law. He pledged to eliminate reliance on novel theories of executive power, avoidance of existing legal constraints, and the use of new procedures, such as military commissions, to deny rights to suspected terrorists in order to make it easier to imprison and convict them. On his first day in office he suspended the military commissions. He and Attorney General Holder repeatedly stressed their determination to abide by the rule of law and to try top suspected terrorists, such as Khalid Sheikh Mohammed, in federal court.
Soon, however, Congress began using its spending power to place limits on the President’s ability to close down the military commissions or the detention center at Guantánamo. As of now, Congress seems to have completely foreclosed the possibility of criminal prosecution of anyone who is held at Guantánamo, despite strong objections from the Pentagon, the Justice Department, the FBI, and the CIA. Of necessity, military commission proceedings have resumed. But the Obama administration has not given up on its preference for criminal prosecutions. It has managed to bring a number of new criminal prosecutions of international terrorists captured abroad, and to win some important concessions in legislation originally designed to require all suspected terrorists to be held in military custody and tried by military tribunals.
In Part I of this Article, I discuss the use and justification of military commissions under the Bush-era war paradigm. Part II discusses the evolution from the Bush vision of military commissions as outside the law’s reach to the Obama Administration’s attempt to reinstate the rule of law in detainee policy and to close the military commissions; that Part also examines congressional legislation using the spending power to force cases out of the federal courts and into military tribunals in order to prevent recognition of procedural rights for detainees. Parts III and IV discuss two enduring flaws of the military commission system under both President Bush and President Obama: first, their jurisdiction has consisted almost exclusively of offenses that are not triable to military commissions, and thus they are illegal under U.S. and international law; second, there is a lack of legal standards for assigning particular detainees to criminal prosecution, military commissions, or indefinite detention without charge. I close with some tentative conclusions about where we are likely to go in the near term. The current Administration will likely attempt to avoid bringing any more individuals to Guantánamo and will still endeavor to try new suspects in federal court rather than before military commissions. But because the commissions continue to be fundamentally flawed and the agenda of reinstating the rule of law in detainee policy is embodied in nothing more permanent than executive orders (with the exception of improved procedures for military commission trials), military commissions are likely to persist, and to continue to be “outside the law’s reach.”