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« Child Rape, Moral Outrage, and the Death Penalty | Main | Beyond Guantánamo, Obstacles and Options (Part II) »

August 11, 2008


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Quite nicely written actually, i like it. :)

Schippen HRF

Well, McNeal certainly has covered the problems that political control in "war crimes" trials presents, something not unique to the nightmare in Guantanamo. Good reforms, but unlikely to be implemented by a Congress complicit in war crimes, and really just lipstick on the bull of a broken system. Nonetheless, he's to be commended for at least trying to propose specific necessary adjustments as it seems the U.S. may be stuck with these kangaroo courts for years to come.

I will withhold the rest of my judgment until I see how he addresses the so-called national security courts. It seems to me that such courts are just a way to hold a secret trial, further depriving persons of their rights. Based on his discussion in the introduction, it appears that he will avoid the normative question of national security courts, which is perhaps wise given the flaws secret courts will contain.


The author mentions the problem with a political appointee as the CA, but the problems complained of by COL Davis did not involve a political appointee. Thus, a change to the regulations would not seem to remedy the problem.

Gregory S. McNeal


The problem is a structural one, caused by *both* the convening authority as a political appointee, and the regulations which allow for the problems identified during Col. Davis' tenure as Chief Prosecutor.

First, as I detail in the essay, the legislation which allows for a politically appointed convening authority vests that individual with all of the discretionary powers found in a military convening authority (with the attendant potential for abuse) without a command justification.

Second, the problems I identify regarding the legal adviser to the convening authority are a consequence of the regulations promulgated by the Department of Defense. Those regulations created the position of the legal adviser, a position not found anywhere in the MCA. Those regulations were promulgated without public comment and seem to violate the spirit of the Hamdan decision's interpration of Common Article 3.

Taken together, *both* the legislation and the DoD regulations implementing the legislation have created a structure which allows for undue political influence. True, a change to the regulations won't remedy the problem of the politically appointed convening authority, but I don't make that argument.

-Gregory S. McNeal


Well written article - I enjoyed the read. I don't believe the current operations at the centre are sustainable however. Much still needs to be done. Mike.

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