Court of Military Commission Review challenges
The military commission system and the court-martial system are generally kept at arm’s length. But one area where they intersect is the judiciary. Sitting military judges have been presiding over military commission trials and sitting CCA judges have been serving on the Court of Military Commission Review. Some interesting motions practice has arisen in connection with the latter. While I generally avoid blogging about military commission matters for a variety of reasons, I note these recently filed motions due to their overlap with the functioning of the Courts of Criminal Appeals.
Col Thompson, USAF, used to be an AFCCA judge. But she left that court at the end of June and now serves as a staff judge advocate. She nevertheless remains on the Court of Military Commission Review. The Regulation for Trial by Military Commission, which was promulgated by Deputy Secretary of Defense Gordon England in 2007, provides that the “CMCR will consist of judge advocates who are currently certified and detailed as appellate military judges to the services’ Courts of Criminal Appeals (CCAs), or civilians of comparable qualifications.” RTMC, para. 25-2.c. The Military Commissions Act of 2009 includes somewhat similar language. 10 U.S.C. § 950f(b)(2). Counsel representing Salim Hamdan yesterday filed this motion challenging Col Thompson’s eligibility to remain on the Court of Military Commission Review now that she’s no longer a CCA judge.
The motion also challenges Chief Judge of the Navy O’Toole’s authority to remain on the CMCR. The motion observes that while Navy regulations authorize Chief Judge O’Toole to sit as a trial judge, he isn’t authorized to sit as an NMCCA judge. Indeed, he’s statutorily ineligible to sit as an NMCCA judge since he’s the reporting senior for NMCCA judges. See Art. 66(g), UCMJ.
Also yesterday, the CMCR’s Clerk of Court directed the government to respond to the motion within five days.
Today, counsel for al Bahlul filed this motion to intervene in the Hamdan appeal to raise another challenge to the CMCR judges. In this separate motion, counsel for al Bahlul ask Chief Judge O’Toole to remove himself as the reporting senior for Judge Price, who sits on both NMCCA and the CMCR, but who has recused himself from the Hamdan appeal. The motion argues that Congress meant to create the same safeguards for judicial independence of CMCR judges as exist for CCA judges, and that “[c]hief among those safeguards is the broad language of Article 66(g), which makes any effort by one appellate military judge to influence the professional evaluation of another appellate military judge unlawful influence per se.”
the qualification is appellate judicial experience. or maybe even just a law degree. who knows or cares. waste of time.
Legit issues raised here. Good catch by counsel. It’ll get fixed one way or another. More interesting, and more important, is the material support for terrorism issue raised by Hamdan’s lawyers elsewhere. Is it a war crime and/or is it ex post facto? CMCR announced en banc consideration last week. It’s been sitting on the issue since January. So, a decision the court considers important, and is probably divided on, is coming. The military commissions’ death has been predicted many times before, but if CMCR finds commissions have no subject matter jurisdiction over MST that might really be it.
I’d agree with Publius, this will get fixed one way or another. And I’d also agree that it qould be nice to get to the merits of the decision. At the intersection of those two issues is this question, before filing such a motion to disqualify the court members, should counsel consider whether his client would be better off on the merits with an improperly composed panel than a properly composed one? That would require insight intot the potential views of both the sitting judges and their likely replacements–which are probably both known unknowns in this case. In any event I think one ought at least consider the issue, we certainly should have in a similar motion in a case where we disqualified most of the NMCCA.
Conspiracy…….good ole conspiracy!
What of the issue of O’Toole detailining himself to a court-martial, then that record gets reviewed by appellate judges he writes fit-reps for?
Anyone know why al Bahlul’s counsel didn’t use the same argument as Hamdan’s in arguing that O’Toole can’t sit on the CMCR b/c he’s no longer an appellate military judge?