For a prosecutor, it is an odd way to “stick to his guns,” but Brig. Gen. Mark Martins, the chief prosecutor for military commissions at Guantanamo Bay, is refusing to support conspiracy charges against the alleged 9/11 conspirators. He had previously acceded to dropping the conspiracy charges after the recent reversal in Hamdan. But the Convening Authority, Vice Admiral Bruce MacDonald (Ret.), pushed back by refusing to allow the charges to be dropped. Now the prosecutor is left in an uncomfortable position.
However, experts have noted that the Military Commissions Act of 2009 does not allow anyone, even the Convening Authority, to interfere with or unduly influence the prosecutor’s professional judgement. He may therefor allow the defense motion for dismissal of the conspiracy charges to go uncontested. In theory, he may even argue in support of it.
As noted by James Connell, defense counsel for co-defendant Ammar al Baluchi, this contest between the prosecutor and the Convening Authority emphasizes one of the fundamental weaknesses of the military commissions system: the Convening Authority has both judicial and prosecutorial duties. According to Connell, “The Convening Authority’s insistence on prosecution of the conspiracy charge at the same time it controls defense funding and hand-picks the panel of military officers to hear the case illustrates this conflict of interest.”
So far it seems that all the players are exercising independent judgment. However, these events should be a warning to Congress that the system they designed is far from perfect, with flaws that have long since been addressed in our federal courts. The use of a convening authority for courts martial allows a commander to balance the need for strong discipline with the exigencies of maintaining a functioning military. Such considerations simply do not exist for accused terrorists. As in federal prosecutions, terrorism and war crime charges should be brought by a purely prosecutorial authority, with an independent judicial authority controlling which charges may proceed. This is precisely what we have in federal courts.
Paul Taylor, Senior Research Fellow
Center for Policy & Research