| WCL’s National Institute of Military Justice shines a light on military commissions BY MIKE UNGER Among the most confounding dilemmas to emerge in post-9/11 U.S. society has been that of what to do with captured terrorist suspects. Should they be tried in civilian courts? Provided military commissions? Be left to languish in Guantanamo and other prisons indefinitely? The issue had not been visited in nearly a half century, since the United States held its last military commissions, sometimes referred to as tribunals. In the months leading up to the landmark Hamdan v. Rumsfeld case, in which the Supreme Court outlawed the commissions, and the subsequent debate surrounding the legislation signed into law by President Bush last month that reinstated them, there was a gnawing hunger in the public for an impartial source to explain and clarify the issue.
Eugene Fidell
Kathleen Duignan
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In many cases, both domestic and international media turned to Washington College of Law’s National Institute of Military Justice (NIMJ) to fill that void. “I think that it’s quickly become the recognized subject matter expert in the area,” said Dwight Sullivan, a former NIMJ advisor who now works for the U.S. government as chief defense counsel for the Office of Military Commissions. “While you have some other organizations that might speak to military justice, I think NIMJ has provided an expert and important voice. It has the time and resources to study the system.” Founded in 1991 by former Coast Guard lawyer Eugene Fidell and three others, the institute’s mission is to foster ways to improve the administration of justice in the U.S. armed forces, and to improve public understanding of the military justice system. “There was a sense that some outside entity had to take a serious, informed interest in the area,” Fidell said. “It’s particularly important in a nonconscription environment, because if the families and young people of America don’t have a conviction that they or their loved ones are going to be treated fairly if and when they elect to put on the uniform, they will vote with their feet and people will not join in the numbers that are required. The minute the system suffers that kind of degradation we are really going to be in trouble. “To the extent that people are looking over our shoulder, particularly in the rising combat operations in Iraq and Afghanistan—our allies and people who are not our friends around the world—if we don’t have a meaningful system of discipline for the armed forces, we can kiss goodbye an effective national foreign policy.” In addition to its educational components, the institute often files friend-of-the-court briefs in cases involving military justice. “We don’t consider ourselves the spokesman for the defense bar,” Fidell said. “People sometimes assume that we are invariably at odds with the government. That is not true. We have occasionally filed amicus briefs supporting the government, although not necessarily for the reasons the government might want.” Such an instance occurred in the late 1990s when the institute filed a brief supporting the administration in the Supreme Court case of Clinton v. Goldsmith, which examined the scope of powers the Court of Appeals has over the armed forces. On the issue of the military commissions, however, the institute is squarely opposed to the government. “At first NIMJ institutionally was quite agnostic on the military commissions, but we have developed a position of skepticism about how the commissions have evolved,” said Fidell, who testified before Congress on the subject. “This process has left the legislative process in tatters, and in my own mind raised substantial questions about the integrity of the legislative history process. This has been quite a disturbing exercise from our perspective.” Comprising nine board members and 20 advisors, many of whom have worn a military uniform, the institute in 2005 received a grant from the Open Society Institute that allowed it to hire executive director Kathleen Duignan and to affiliate with American University. “We did a beauty contest of law schools and American University was the best of some wonderful options we had,” said Fidell, a partner at the Washington law firm of Feldesman Tucker Leifer Fidell. “They have this collection of human rights–oriented groups. This is like a nuclear reactor of groups that are in similar parts of the forest. The whole apparatus is geared toward organizations like us. Our interests have moved in a direction where we do try to keep on top of international developments. The world is globalized, particularly in the military justice area. This is the place to be in the Washington area, if not the country. The dean [Claudio Grossman] is a phenomenon. You couldn’t ask for a better place for our organization.” Since the partnership was forged, the institute has held several seminars at the law school, and last spring Fidell taught a course on military justice that attracted 19 students. Three dean’s fellows are currently working with the institute on a project to create a national court-martial docket. “We’re trying to gather information from around the world about the cases that are being tried by the five services in order to provide a one-step repository for trial information so that media and the public can attend and view courts-martial for themselves,” Duignan said. “It’s very difficult to get that information now, there’s no central location, so we’re trying to develop a Web site that will serve as a one-stop repository. Transparency is one of the key factors [needed] to increase confidence in any justice system.” On Nov. 17, the institute will hold a symposium at WCL examining contemporary issues in military law. “What we’re trying to do is bring interested faculty in to discuss the current issues in military justice in order to bring those issues back to classrooms around the United States,” Duignan said. “We try to look at the larger picture. In that way, we come in as a neutral party to advocate some kind of improvement to change the system.” For more information on the National Institute of Military Justice, log on to www.nimj.org |
