With all the talk about the military’s “inadequate” prosecutions of sexual assault cases, it’s easy to forget that military prosecutors lack some of the discretion of their civilian counterparts. Even when the prosecutor himself wears stars:

The Pentagon delivered an embarrassing public blow Friday to the chief prosecutor for the military commissions at Guantanamo Bay, Brig. Gen Mark Martins, rejecting his request that certain charges against the alleged September 11 plotters there be dismissed in order to reduce legal uncertainty about the cases.
. . .
On Friday, the Pentagon issued a press release saying that the convening authority for the military commissions, retired Vice Admiral Bruce MacDonald, had rejected Martins’s request to drop the conspiracy charges.
. . .
“The convening authority noted that dismissal at this time would be premature, as the viability of conspiracy as a chargeable offense in trials by military commission is still pending appellate review,” said the Pentagon release, which did not identify MacDonald by name. The release said he noted that “Congress included conspiracy as a chargeable offense in the Military Commissions Acts of 2006 and 2009, and that two Presidents had signed those Acts into law,” that the Justice Department maintains the charges are still viable and the issue has not been definitively decided by the courts.

The effort to dismiss the charges is part of the continuing fallout from the D.C. Circuit’s decision in Hamdan II, finding that a charge of material support for terrorism for pre-2006 conduct cannot be brought before a military commission, because material support is not a traditional war crime under the international laws of war. More details in this Lawfare post, that also calls the 9/11 prosecutions “an embarrassment of charging riches for a prosecutor.”

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