Are the Military Commissions Doomed?

Slate's blog on legal issues.
May 15 2008 12:54 AM

Are the Military Commissions Doomed?

Emily and Dahlia think so:

Key actors are declining to play their part in a piece of theater designed to produce all convictions all the time. These refusals, affecting two trials this week, suggest that the whole apparatus-seven years and counting in the making-cannot ever be fixed. The trials are doomed, and they are doomed from the inside out.

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But they have an awfully high standard for success:

Since the inception of the commissions, the brakes have almost always been applied when some member of the military has balked, even when going along would have been the far easier course. These refusals-some silent, some very public-have combined to stall the tribunals. The clearest sign that the military system is working is that the military itself has refused to let it go forward.

If this standard were really to be applied, then the commissions would be doomed. If the commissions go forward, they cannot be legitimate, for the absence of balking would mean that participants lack integrity and are just "going along." If the commissions don't go forward, they are legitimate—but they don't actually do anything. Which is just to say that under any possible state of the world, the commissions must be ineffective, and all evidence is irrelevant.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.