SCOTUSblog brings us news of action on a writ petition filed by CDR Suzanne Lachelier and LCDR Richard Federico on behalf of their client, Ramzi bin al Shibh.  The government has been ordered to file a response; the timetable set up by the appeals court suggests that the petition will be heard very soon.

In fairly harsh language, the petition asserts that cases brought under the Military Commissions Act of 2006 “were never intended to do justice. Instead, what the government has sought, and to date received, is not a legitimate judicial proceeding but a political show trial.” 

The petition focuses in large part on the government’s handling of mental health issues that purportedly call into question bin al Shibh’s fitness to stand trial. According to the petition, the accused was diagnosed by a sanity board comprised of military psychiatrists as suffering from a delusional disorder that “has the potential to impair his ability to conduct or cooperate intelligently in his defense.” The Convening Authority, the petition states, repeatedly denied defense requests for an expert; when the military judge finally ordered a defense psychologist be appointed, it was with the proviso that the psychologist not be permitted to meet with bin al Shibh or testify at the competency hearing. 

Petitioner’s counsel allege that it is “inconceivable that American citizens accused of capital or other serious crimes” would be treated in the same manner.  For this reason among others, they argue, the MCA violates the Due Process Clause’s principle of equal protection, both as written and as applied in bin al Shibh’s case.  They ask that all proceedings before the military commissions be halted.  The full petition can be found online here: [PDF].

In a one-page order issued Friday, the Court of Appeals for the D.C Circuit ordered the government to respond to the petition by noon Tuesday, September 15, 2009. Bin al Shibh’s reply brief is due forty-eight hours later.

48 Responses to “JAG Defense Counsel Launch New Attack on MCA”

  1. JWS says:

    Can someone explain to me what is going on with convening authorities these days? The Haditha case is making my Marine Corps look like a two-bit tyranny — and now this.

  2. Anonymous says:

    Perhaps this is too broad a comment for this issue, but what exactly is the concern with just giving these folks a regular old court-martial, with all the court-martial rules?

    That a panel of military officers is going to be releasing guilty terrorists left and right?

  3. Christopher Mathews says:

    JWS, I think it’s worth remembering that the petition contains the defense’s interpretation of events. While I’m sure that as officers of the court the two JAGs who signed it have a good-faith basis for each and every one of their assertions, theirs may not be the only way to look at what transpired.

    Anon 1152, I’m sympathetic to your question. Aside from the widely-held assessment of these defendants as sort of sui generis evil-doers, I can’t think of any particular reason why they needed their own legal system. If courts-martial aren’t up to the task, there are always the precedents established at Nuremburg. Bin Laden et. al. are two-bit thugs compared to the likes of Himmler and Goering.

  4. Anon says:

    Right or wrong, you know what’s even more telling about the Military Commissions? The public doesn’t even care anymore! Does anyone read anything about these cases in “mainstream media” anymore? I don’t think so.

  5. No Man says:


    While I have great respect for your opinions, I can’t disagree more with you analogy in response to Anon 1152. How are Bin Alshibi and the 9-11 plotters “war criminals” in any way shape or form similar to the Nazis? They committed a despicable act of international terrorism. They belong where every other international terrorist was tried for such crimes before 9-11, in a criminal court. See e.g. Eyad Ismoil and Ramzi Yousef. See also here. Crimes aren’t war crimes just because a group of people call it a war. There actually has to be something resembling a war to call it a war crime and treat individuals that violate the rules of war as war criminals.

  6. Anonymous says:

    The public’s prioritization of concerns is not always…logical.

    Right now, the diss of Taylor Swift by Kanye is probably in the top five.

  7. Anonymous says:

    OR you could try them in a court-martial, showing that your justice is so far that you even treat terrorists above and beyond, thus removing a source of complaint by your allies and propaganda by your enemies while still getting all the convictions needed to protect your nation.

    If you want to make a criminal court versus a court-martial, that’s fine too, but what we did was neither. And even now, for reasons that escape me, we still try to manufacture some hybrid just to keep them out of regular court out of some apparent fear that if they get rights somehow they will escape justice.

    It’s been a waste of time and money and now possibly some folks very well may go free who shouldn’t because we’ve dorked it up so much.

  8. blahblahblah says:

    The notion that certain offenders are too dangerous for the courts is one of the stupidest ideas to have come about in recent history, but unfortunately some very smart people are backing it for various reasons. Most notably, those who seek the limelight.

  9. Christopher Mathews says:

    No Man, I don’t think you should take the analogy any further than I intended it: as an illustration of the fact that our system, pre-MCA, already had mechanisms adequate to try even the very worst of the worst. Like Anon 1848, I think our existing criminal courts — military and civilian — are up to the task of trying terror suspects.

    I recognize that there are those who disagree, and would argue that bin Laden and his henchmen are so qualitatively worse that Timothy McVeigh that they require a different form of tribunal. I think they’re wrong; but I would expect we can agree that bad as they are, the architects of the Third Reich were far worse. Hence my conclusion that even if our criminal courts were not up to the task, there still would be no need for a whole new judicial edifice. Any system up to the task of trying the Nazi leaders could certainly deal with pipsqueaks like al Qaeda.

  10. No Man says:


    Gotcha. I have heard/seen the argument about not civilian courts a few times today and I just don’t get it–so I was a little over zealous there. In my mind, the only difference between Ismoil/Yousef and Al Shibh/9-11 conspirators is one had a plan that didn’t work and the other learned from their predecessors mistakes and had a plan that did work. Ismoil and Yousef will die in a Colorado prison after a fair trial in a regularly constituted civilian court.

  11. JWS says:

    Col. Mathews: Your point is well taken, of course. And I quite agree with you on the whole notion of the MCA. That said, the limitations on the psychiatric consultant, if true, smack to my lawyer & former staff NCO mind as gross command influence.

    If convening authority wants the guy tried, then it must allow a defense. The terms limitations imposed by convening authority strike me as illusory.

    Still, as you wisely say, let’s see what the Gov’t says.

  12. Gen Curtis LeMay says:

    I fully support all due-process protection for any “alleged” war criminals…I’m just glad we won WWII!

  13. Anonymous says:

    “Therefore they should not be given a trial at all and summarily executed, or at least executed in less than 4 months which is what Roosevelt did when he came up with ‘enemy combatants’.”

    You know that’s an interesting approach considering the fact that we’ve released quite a few folks that we’ve admitted and expressly said had done nothing wrong. In most cases, a fact that took us several years to suss out.

    So those folks should be dead too, right?

    “Yeah, I am sure our fairness by giving them free medical care and three hots and a cot is really going to make the throat cutters put down their scimitars.”

    That’s what I like to call a non-sequitor. I could call it worse but I am struggling to give you the respect you routinely refuse to show to others you disagree with.

    Because it boggles the mind that you would view the words “removing propaganda” as equivalent to “making the throat cutters put down their scimitars.”

    See, the former is an attempt to remove an ability of the enemy to influence world opinion in a way that lowers our prestige and influence.

    The latter is a direct attempt to make the enemy happier.

    Now the last time I checked, removing the former will not result in any way possible in the latter.

    It has nothing to do with “kindness.” It is about standing up for what America stands for. Justice for all. It is about being BETTER than our enemy. It is about recognizing that this is a route we could have taken that would have simultaneously raised our standing in the world while not affecting our safety in the slightest since no court-martial panel is going to give much of a benefit of the doubt to anyone remotely likely to be a terrorist or enemy combatant.

    In other words, it’s called being smart. Which the person you “agree with” No Man also agrees with since he also views the court system as the appropriate venue for trying these folks and not the manufactured hybrid that was last used around the same time that we were imprisoning Americans for the crime of having Japanese ancestry.

    A practice no doubt had you been around at the time you would have equally agreed with, using colorful language like the era equivalent of douche-bag.

  14. Anonymous says:

    Thanks 2356.

    Cossio, once again, you’ve lowered the level of discourse to a place never before imagined. I hate to think where you will take it next.

  15. John O'Connor says:

    Without lending any support to the substance of the other arguments in this thread, I continue to be amazed that Cossio is so anti-criminal.

  16. Anonymous says:

    What’s your issue with atheists?

  17. Anti-Cossio says:


    Why must you always resort to name calling? You need to get out of that habit. When you’re in court you argument to the judge can’t be “The opposing counsel is a douche”.

  18. lex partum bellum says:

    Cossio was a military prisoner? Say it ain’t so! You called your CO a “douche-bag” didn’t you?

  19. Anonymous says:

    What’s his issue with atheists? Have you seen their beady little eyes??!!

    “A fantasy land were giving the enemy full access to our courts and benefits befitting a citizen will deter them from their terrorism.”

    Your inability to comprehend fairly simple English is awe-inspiring. There is no way a rational human being who is literate can read “remove propaganda” to mean deterring terrorists through benefits.

    I get the feeling if I said “the sky is blue,” you’d respond with “kumquat applesauce!”

  20. Anonymous says:

    It is somewhat amusing, that someone so intimate with the legal system thinks due process equates to being “nice.”

    As if the concept is something we do only for the good ones or on special occasions.

  21. Anon says:

    Cossio, I think someone wants you to tell your story again??

    It’s amazing how Cossio always seems to take over the comments…

  22. Christopher Mathews says:

    Cossio, I think you’ve put your finger on an important point when you say “our constitution applies to the United States, its citizens, and anyone subject to its jurisdiction thereof.” The problem is that detainees plainly are subject to the jurisdiction of the United States.

  23. bmizer says:

    Cossio, Justice Frankfurter, who participated in the decision from which you quote, later called that case “not a happy precedent.” In Hamdi, noted liberal Justice Antonin Scalia referred to the case as “not this Court’s finest hour.” More importantly, after Boumediene, Quirin takes its rightful place alongside Eisentrager, Yamashita, and Korematsu, and serves as authority only for the proposition that we should never deprive those tried in U.S. courts basic due process.

  24. Anonymous says:

    that Scalia, always with the coddlin’ of the terra-ists.

  25. Christopher Mathews says:

    Cossio, any Back to the Future reference makes me smile.

    That aside, I think your argument is neither with me, nor with TJ — and for the record, I agree with JFK’s observation about Jefferson’s intellect — but with yourself. You said that “our constitution applies to the United States, its citizens, and anyone subject to its jurisdiction thereof.” You have yet to define how and why these detainees, whom the United States seeks to prosecute and put to death, are not subject to our jurisdiction.

  26. Anon 1342 says:

    Cossio, To quote J’OC from a previous post to you: Best work ever!

  27. Anonymous says:

    Cossio, wouldn’t TJ have supported atheists in their right not to believe in god?

    Also, did you get your LSAT score yet?

  28. Anonymous says:

    Cossio’s post is humorous, but not in the good way, like you’d want.

    Creative, ignores that it was TJ himself who wrote the letter using the words separation of church and state (and that he didn’t have a ton to do with the bill of rights or the Constitution although he certainly was an advocate for the bill of rights once Madison wrote it and put it forward).

    Perhaps you should go back and talk to James Madison, since he basically wrote the Bill of Rights more or less by himself and is called the “Father of the Constitution.”

    Interesting cat that Madison, was in favor of a strong central government supreme to the states.

    I do find it interesting that you can tell us what TJ or any other founder would have done on an issue that was never talked about, considered, or apparently even thought about during their time, the legal status of terrorists in re the Geneva Convention and our obligations therein as well as under the Constitution.

    I’d guess, like many of the other things in the Constitution, you’d have had a debate between two sides. But then I don’t share your gift of…certainty.

  29. Anon 1342 says:

    I’ve always thought that the ‘Framer’s Intent’ argument is always taken too far…But, I gotta give this one to Cossio.

    Consider, while the Founding Fathers didn’t consider the rights of foreign nationals bent on killing American citizens—They sure did use the word “slave” a lot in the constitution! I doubt they would have given foreign combatants too much sympathy.

  30. Anonymous says:

    An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention so that he must be “treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial.”

    You keep saying the GC doesn’t apply, but the reality is that it isn’t that the GC doesn’t apply it is that they are not POWs and so are not treated with the special privileges/benefits/protections of same.

    The problem is that the exhortation to deal with non-protected classes (i.e. terrorists) “humanely” is a pretty broad statement, which the previous administration interpreted in a manner which the SC said was too far in some respects.

    I’m confused by what you’d have done on the other issue you cite. If courts are not to attempt to apply Constitutional principles to new issues, which you yourself agree were likely never contemplated by the Founders, then what is supposed to be done? A decision has to be made on Constitutionality.

    Didn’t NAZI’s have trials that had defense attorneys and relative equality to a civilian equivalent of the time? Certainly there are valid criticisms of ex post facto laws, victors as judges, etc but at the end of the day, they were actual trials weren’t they?

    I finally find your labeling what defense attorneys are doing at GITMO a “stall tactic” somewhat humorous given the string of successes their efforts have engendered at all levels of our appellate system including multiple wins at the Supreme Court.

    I only wish my “stalling” tactics were ever so successful.

  31. Anonymous says:

    “Consider, while the Founding Fathers didn’t consider the rights of foreign nationals bent on killing American citizens—They sure did use the word “slave” a lot in the constitution! I doubt they would have given foreign combatants too much sympathy.”

    Depends on the Founding Father. A substantial minority wanted slavery abolished even back then. TJ certainly did although he was no believer in the equality of African-Americans. Some proposed keeping out slavery, etc from the Constitution. But many compromises had to be made, including to get the Southern States to go along and one of those was the 3/5ths compromise and slavery.

  32. John O'Connor says:


    Anyone who thinks that Madison wasn’t much involved in crafting the Constitution and was more involved in the Bill of Rights is, well, probably not someone who knows much about constitutional history. Madison may have been the MOST involved Framer in the main body of the Constitution.

  33. Anonymous says:

    Was that a criticism of me or Cossio? Just to be clear, I absolutely agree Madison was the main drafter of both the bill of rights and imminently involved in the main body of the Constitution, thus why I noted he was called the “Father of the Constitution.”

  34. Anonymous says:

    not sure why you focus only on TJ. There were many founders who were just peachy with Marbury.

  35. Anonymous says:

    other founders didn’t perceive it as a problem. Marbury stands for the principle of judicial review so not sure how you can concur in the result but not in the “power grab.” It held a statute unconstitutional (or part of it at least). It was not a dispute between one branch and another but between Marbury and Madison.

    Marbury was 1803. 14 years later Madison was wrapping up his second term as president, and he didn’t do anything to stop the “power grab.” Seems to me if the Father of the Constitution didn’t do anything about the judicial branch deciding constitutionality of legislative actions.

    Perhaps Alexander Hamilton from the F.P. #78 said it best:

    “If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

  36. Late Bloomer says:

    I have grown fond of the maxim: “Just because I can, doesn’t mean I should.”

    Or, as St. Paul put it, “What is lawful is not always profitable.”

    In this case, I think Cossio has a leg to stand on from a legal standpoint. But what about the greater moral implications of what he is calling for?

    It’s not about making terrorists happy defining jurisdiction. It’s really about answering to the almighty, is it not? We, the empowered ones, must be able to look ourselves in the mirror, so to speak. Personally, I like what I see a little bit more when I know that my country is going above and beyond what is merely lawful, perhaps even at the risk of letting a bad man loose.

  37. Anonymous says:

    “judicial activism” is “I dont like the decision”

    You want the 9th circuit replaced because you think they are too liberal. Someone else wants another circuit replaced because it is too conservative. That would lead to awesome results.

  38. Anonymous says:

    Say what you want about Cossio, but don’t ever say that he doesn’t know how to cut & paste.

  39. John O'Connor says:

    Cue the principal in Billy Madison: “I am now dumber for having read this thread.”

  40. Anonymous says:

    Yes, but aren’t you entertained? ARE YOU NOT ENTERTAINED?!

  41. Anon says:

    Just because I love the movie and because it is about as relevant as 75% of this thread:

    At this point, you may be asking yourself, why am I holding this 30 pound cinder block in my hands? You might also ask yourself, why does this cinder block have a long piece of string tied to it? And finally, why is the other end of this string tied securely to your penis?

  42. Southern Defense Counsel says:

    Twice in a month I agree with JO’C. There is much debate these days over the lack of civility. Cossio has brought the boorishness to this thread. I had hoped for a debate on the petition. Alas none here.

  43. Anon says:

    I thought it was a pretty entertaining comment string!

  44. John O'Connor says:

    I agree with Anon 0954.

  45. Bridget says:

    Recommended reading, in addition to the filing in this case, the forward to the MC Reporter, posted on the NIMJ site. Written by Judge Patricia Wald who served on the DC Circuit from 1979-1999, chief judge 1986-1991, and on the Int’l Criminal Tribunal For the Former Yugoslavia form 1999-2001.

  46. Cossio says:

    Well I thought this was a riot. I’m actually going to archive this post and look more into article iv of the geneva conventions. Southern DL, I don’t think of my discussion as “boorish” as the petition itself, which put me to sleep last night.

  47. LTC Slade says:

    Mr. Cossio, you are a wordsmith of the highest order…please keep up the good work, sir.

  48. Christopher Mathews says:

    Coments on this post are now closed. For more discussion, see the update on the government’s response, here.