It’s Time to Admit That the Military Commissions Have Failed

I’ve written elsewhere about the U.S. Court of Appeals for the D.C. Circuit’s stunning, unanimous decision in In re Al-Nashiri III to throw out three-and-a-half years’ worth of pre-trial rulings by a Guantánamo military commission in the case of the alleged USS Cole mastermind—all because Air Force Colonel Vance Spath, the judge presiding over those proceedings, was actively pursuing employment from the Justice Department as an immigration judge at the same time. Crucially, Spath failed to disclose that fact to the parties. It speaks volumes that the panel, which included Judge Thomas Griffith—a conservative who has generally sided with the commissions in prior cases—saw this as an obvious case for mandamus relief even under the D.C. Circuit’s notoriously strict standard. It likewise speaks volumes that neither Spath, nor the Court of Military Commission Review (CMCR), nor the government’s lawyers understood it as such.…

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