No Third Class Processes for Foreigners

By Benjamin G. Davis[*]

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Professor McNeal’s analysis begins by looking at two conflicting statutory provisions regarding military commissions: one provision allowing a political appointee as Convening Authority, and another providing trial counsel with enhanced protection from undue influence.[1] He sees this interaction as permitting politicization of the trial procedures. Professor McNeal urges the exclusion of political influence from the Convening Authority, by either placing a military officer with existing courts-martial responsibilities in this role or, alternatively, creating a joint Convening Authority. He also urges Congress to bolster the independence of the trial counsel so that they are not subject to the evaluation of higher-ups who have an interest in the outcome of trials. He urges transparent rulemaking, according to procedures that are at least as protective as those required for promulgating rules in courts-martial.

In the second part of his essay, Professor McNeal describes a series of obstacles impeding a transition to a National Security Court. He highlights the nonprosecution paradox as well as intelligence problems, and posits three transitional obstacles to a National Security Court: (1) challenges posed by accommodating speedy trial rights in light of security clearances and secured facilities, (2) authorities governing the methods by which intelligence is gathered and used, and (3) the phenomenon of executive forum-discretion.[2] Professor McNeal is admirable in avoiding “a clean slate view” by steering away from the tendency to be prospective, and instead focusing our attention on what kind of process should be in place for the eighty triable detainees currently in custody.[3] He urges that reformers must recognize the corrections identified, which he considers to be necessary for the continued use of military commissions. Today, post-Hamdan[4] and post-Boumediene,[5] Professor McNeal suggests how to improve the military commissions. Part I of this Essay asserts that the flaws in the structure of the military commissions are intentional and explains why such a flawed structure was established. Part II discusses the military commissions’ third class processes. Part III explores the troubling example of the Hamdan military commission, and Part IV asserts that attempts to reform the military commissions will be fruitless. Part V suggests using a different perspective for establishing procedures for trying terror suspects.