Bickers, John M., Asculum Defeats: Prosecutorial Losses in the Military Commissions and How They Help the United States (May 1, 2016). National Security Law Journal, Volume 4 (Forthcoming) . Available at SSRN: http://ssrn.com/abstract=2773759

“Small but consistent failures have marked the U.S. endeavor to use military commissions in the struggle against Al Qaeda. The handful of cases have mostly ended in reversals of convictions and sentences. This article will consider the possibility that conflating two kinds of crimes created the legal errors that led to these defeats. Law of war military commissions have historically been used not only as extraordinary venues for prominent war criminals, but also for preserving the vital role of combatant immunity. Commissions thus tried those accused of grave breaches of international law as well as the kind of ordinary belligerency offenses that would not even have been illegal had the perpetrators been legitimate combatants. Because the military commissions stemming from the War on Terror drew precedent from all manner of past military commissions, whose rules contemplated trials for both kinds of accused, the government wandered into an ever-more labyrinthine view of the law appropriate to the commissions. The article will consider the completed cases, focusing on the prosecution’s choice to emphasize inchoate offenses. It will then compare international and domestic law and suggest that the government’s losses occurred because of the inappropriate amalgamation of grave breaches and belligerency offenses, and that the assessment of liability is very different between the two. International law has long recognized some species of expansive liability for grave breaches, but not for belligerency offenses. Because most detainee trials to date have been for belligerency offenses, the reliance on offenses like conspiracy and material support for terrorism has led to a string of reversals. This article will suggest, however, that these defeats suffered by the U.S. have actually been to its benefit. In the short term, the loss of confidence in the military commissions might make possible a federal trial for some of the remaining detainees, such as Khalid Shaikh Mohammed. The world benefits from a public trial of persons accused of grave breaches, but a U.S. military commission can no longer realize most of that potential benefit. In the long term, a regime of international law that provided expanded liability for belligerency offenses would greatly harm U.S. strategic interests. By losing a series of small judicial battles, the U.S. is positioned to win a much more significant war.”