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The Notre Dame Journal of Law, Ethics and Public Policy

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Since they were first authorized in the weeks after the 9/11 attacks, the Guantanamo Bay Military Commissions--special military tribunals for the trial of certain terror suspects--have generated eight minor convictions at a cost of over one billion dollars. Nearly half of the convictions have been vacated on appeal. The three ongoing contested cases, including the case against those accused of complicity in the 9/11 attacks, remain mired in pretrial proceedings. The biggest storylines emanating from the commissions do not concern convictions, but rather government surveillance of the defense teams and the compelled recusal of judges for the appearance of partiality toward the government. Focusing largely on the unique structural features of the commissions, such as the remote location of the commissions that helps explain their cost or the rules of evidence that are unusually favorable to the prosecution, scholars and other observers have consistently and understandably described the commissions as failures. This Article argues that we have been looking at the commissions all wrong. First, the structural features of the commissions are not the primary drivers of their performance. The more fundamental problem is one of ethos: officials associated with the commissions consistently prioritize objectives other than dispatch, transparency, and public confidence. Second, that prevailing culture was injected into the commissions deliberately at their founding and remains broadly consonant with the governing norms of the broader War on Terror. The commissions have indeed failed the American people, but not because they were badly designed: rather, it is because they have done exactly what they were designed to do. These conclusions have significant implications for our understanding of the importance of the informal norms that overlay the structural features of any justice system, as well as lessons for the War on Terror specifically.

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