The complexities and challenges of the military commissions for accused terrorists being detained and tried at Guantanamo Bay, Cuba, have regularly required the expert testimony of leading figures in international
criminal law.
One such expert is Creighton law professor Sean Watts, JD. With 15 alleged al-Qaeda conspirators in U.S. custody and charged with planning the Sept. 11, 2001, attacks and the attack on the USS Cole in 2000, the military commissions have spent more than a decade on questions of military and international law in putting the men on trial. In December, Watts served as a witness for the defense on the rules of armed conflict in international law, specifically regarding the existence of a state of war between the United States and al-Qaeda, the terrorist organization that claimed responsibility for the 9/11 attacks.
“Law-of-war offenses, such as those the alleged 9/11 conspirators are charged with, can only arise during periods when armed conflict exists,” Watts says. “International law recognizes that armed conflict can exist between nations and private groups. But the standard requires that the group in question be sufficiently organized and that violence between the nation and private group be of sufficient intensity to characterize that violence as armed conflict. I provided the court with elaborations of that definition and some examples of how past situations of violence between nations and private groups had been classified as either armed conflict or something less than that.”
The history of military commissions dates to at least the Revolutionary War, Watts says, and they’ve been used with greater frequency since the end of World War II, when an international tribunal at Nuremberg tried the surviving leaders of Nazi Germany for crimes against humanity. Watts says this most recent iteration of a commission, to try the alleged 9/11 conspirators, has garnered attention for its departure from the usual standards governing such commissions, usually drawn from courts-martial in the U.S. military.
Watts also notes the further extraordinary nature of the commissions on several fronts, including the lengthy proceedings, from challenges to the ligitimacy of the commissions to the complexity of the issues, and even the choice of location for the trials.
“It is a difficult place to travel to and the facilities remain temporary and ad hoc,” he says. “It seems many of the reasons the government selected the base as the site for detention and trial have disappeared, raising questions about the wisdom of this location.”
As a professor in international criminal law who has co-led the School of Law’s annual trip to Nuremberg, Germany, in the summer, Watts has followed the proceedings at Guantanamo and the work of Creighton students and alumni who have been a part of the Military Commission Defense Organization (MCDO) there, some as part of the School of Law’s Government Organization and Leadership (GOAL) program.
“Creighton law has had outsized participation in the commissions,” Watts says. “The opportunities provided by our GOAL master’s degree program have contributed to this phenomenon. The law school’s focus on producing expert, zealous and ethical advocates, able to adapt to unfamiliar and in some ways novel proceedings, has made our students and graduates a natural fit for this high-profile, historically significant and challenging litigation.”
