Who decides the laws of war?
Charlie Savage is among journalists a paragon, and he has an excellent column in today’s NY Times:
UNTIL recently, no uniformed lawyer was viewed by the Obama administration with greater favor than Brig. Gen. Mark S. Martins, the scholarly chief prosecutor of themilitary commissions system who is leading the case against Khalid Shaikh Mohammed and four other Guantánamo Bay detainees accused of aiding the terrorist attacks of Sept. 11, 2001.
A Rhodes Scholar who graduated first in his class at West Point and earned a Harvard law degree alongside a young Barack Obama, General Martins served for five years in Iraq and Afghanistan, helped review detainee policies for President Obama in 2009, and was handpicked to reboot commissions in the hope that his image and conduct would persuade the world to respect the outcome of the Sept. 11 case — prosecutors are seeking death sentences — as legitimate.
But next week, when General Martins returns to public view at a pretrial hearing in the Sept. 11 case, he may appear to have gone rogue. He has engaged in an increasingly public dispute with the administration centered on an uncomfortable question he is refusing to drop: is it valid for the United States to use tribunals to charge idiosyncratic American offenses like “conspiracy,” even though they are not recognized as war crimes under international law?
General Martins’s standoff with the administration is writing a new chapter in a familiar narrative: since the 2001 terrorist attacks, military lawyers in the Judge Advocate General’s Corps have repeatedly clashed with politically appointed lawyers over the laws of war.
During George W. Bush’s administration, uniformed lawyers pushed back against civilian officials over the applicability of the Geneva Conventions in the war on terrorism, torture and protections for defendants in tribunals. Then as now, uniformed lawyers adopted rigid interpretations of the rules of warfare as constraining government policies, while civilian lawyers gravitated toward more flexible (or expedient) understandings.
The current dispute traces back to an appeals court ruling in October that vacated a tribunal’s verdict in 2008 against an Al Qaeda driver because his offense, “material support for terrorism,” was not a recognized international war crime at the time of his actions. The judges rejected the Justice Department’s argument that the charge was nevertheless valid under an American “common law of war” and because Congress had listed the crime as an offense for the tribunals in a 2006 statute.
The ruling raised the question of what to do about other cases with the same defect, including the appeal of a convicted Al Qaeda propagandist whose charges included “conspiracy,” which is also not an international war crime but was sometimes charged by tribunals in American history, including in cases from World War II and the Civil War.
General Martins pushed to abandon the propagandist’s conviction and scale back the charges that are triable in a military commission, contending that pressing forward with failed arguments would delegitimize the system and cast a distracting cloud over the Sept. 11 case. But Attorney General Eric H. Holder Jr. decided to go forward with defending the propagandist’s conviction and the validity of conspiracy as a tribunal charge, and the schism opened.
General Martins refused to sign the Justice Department brief in the propagandist case and announced he would seek to drop conspiracy from the list of charges in the Sept. 11 case and focus on “legally sustainable” ones, like the classic war crime: attacking civilians. But the Pentagon official who oversees tribunals refused to withdraw the conspiracy charge, citing the Justice Department. General Martins responded that his prosecutors would not argue against a defense motion asking a judge to scuttle it.
“It really is amazing,” said Gary Solis, a retired military judge who teaches wartime law at George Washington and Georgetown Universities. “They brought Martins in to square it away, and everyone on all sides said ‘if anyone can do it, it’s Martins.’ Then when Martins offers his best advice, it’s rejected.”
In certain respects, the current dispute is knottier and more abstract than Bush-era fights over the laws of war. But a common concern connects them: . . .