Professor David Glazier, a NIMJ Advisor, Loyola Law School Los Angeles professor, and former CO of the USS George Philip (FFG 12), has this report from GITMO:

Guantánamo Military Commission Pre-Arraignment Press Conferences

I am currently in Guantánamo as the National Institute of Military Justice (NIMJ) observer at the scheduled May 5 arraignment of the five alleged 9/11 co-conspirators. Tonight I had the opportunity to attend back-to-back press conferences by James Connell, the civilian “learned counsel” representing one of the five defendants, Ammar al Baluchi, also known as Ali Abdul Aziz Ali, and the second by Chief Prosecutor Mark Martins, whose prepared statement is already posted at the Lawfare Blog [here].

Connell addressed the long delay in the prosecution and previous false starts, suggesting that Saturday’s arraignment marked only the beginning of a multi-year process that could still be in progress in ten years time should the Supreme Court strike down the new military commissions as they did once before. But most of his discussion focused on the secrecy of the proceedings, and how he was legally prohibited from saying anything at all about his client’s intention because of the government’s insistence that anything a detainee formerly held in CIA custody said was presumptively classified at the Special Compartmented Intelligence (SCI) level. The ACLU has filed a motion that I think does an excellent job of addressing the impact of this approach on the public’s right to know (full disclosure – I authored a supporting declaration on historic military commission practice but played no role in drafting the actual motion) [motion here and supplement here]. But the major adverse impact this secrecy has on Guantánamo defense teams’ ability to represent their clients is a topic significantly underreported to date, and Connell’s remarks only scratched the surface of the issue.

Connell also explained the one significant development today – the military judge had intended to conduct an informal session with only counsel present (called an “802 hearing” after the Military Commission Rule 802 addressing the subject). The judge’s staff began notifying the defense counsel of his intention, and according to Connell, attorneys for the first two detainees who were notified both said they would come only if the hearing was recorded so that it could eventually be included in the formal trial record. Shortly thereafter word was sent to the attorneys that there would be no 802 hearing today, meaning that tomorrow’s arraignment will proceed without any formal pre-coordination

Connell was followed by Chief Prosecutor Martins who gave a polished defense of the commissions’ fairness. I think it odd that the individual charged with prosecuting the defendants has taken upon himself the role of head cheerleader for the commission process. One might remember that Morris Davis did this several years ago in his tenure in that job, resulting in significant complaints about his extrajudicial commentary that would have been a subject of some judicial discussion had David Hicks not cut it off by pleading guilty. And Martins should have his focus on fulfilling his ethical responsibilities to do justice in the prosecutions – the Convening Authority certainly can call on other resources such as his own public affairs staff to defend the commissions.

In any event, as a scholar of the military commission process since their announcement in 2001, I found many of Martins’ comments to be less than fully candid. Here just a couple of examples:

(1) He cited the detainees right to represent themselves but neglected to mention that prosecutors previously successfully insisted that al Bahlul be denied that right at trial (before Martins took over), and then unsuccessfully sought to have the D.C. Circuit Court of Appeals reject his appeal because the prosecution believed that he no longer wanted an attorney to represent him. (This was on Martin’s watch).

(2) He suggested that the press should be skeptical of defense claims they are under-resourced and read the government’s filing on the issues. And he noted in Q&A that Congress had called for the defense to have comparable access to witnesses and evidence as provided in Article III courts. But what he did not tell the media was that military commission defense teams must go to the Convening Authority or the judge to seek resources, and unlike Article III courts must submit witness requests to the prosecution, and that the Guantánamo prosecutors contest almost every request made by every defendant. When the defense in a federal trial requires assistance from a court, they are typically allowed to make such requests on an ex parte basis with no opportunity for the government to object. And international criminal law – which should supply minimum due process standards for a trial supposedly based on the law of war – now calls for “equality of arms” between prosecution and defense, a standard clearly not met by the commissions.

(3) His assurance that no statement obtained through coercion will be used rings hollow based on the prosecutions observed track to date, in which virtually every case to date was based largely on statements from detainees who had been subjected to varying degrees of coercive interrogation, and several prosecutors have cited pressure to use tainted statements as at least part of their reasons for resigning.

I can’t help but find myself comparing Martins’ approach with that of Justice Robert Jackson before Nuremberg. Jackson cautioned that the Nuremberg tribunal must be fair to merit international credibility, and dedicated himself to achieving that result. Martins insists that the Guantánamo tribunals are fair in the face of international doubts about their credibility, and has seemingly dedicated himself to persuading us of that belief.

More tomorrow from Prof. Glazier.

14 Responses to “LiveBlogging the KSM Arraignment”

  1. Casual Reader says:

    Thank you for your commentary.   This is only the beginning of a very long process during which the rule of law will be stretched to its outer limits.

  2. Combat 27A says:

    I note Prof Glazier has never actually practiced law – which of course makes him perfect as law faculty member.    He strikes me as the sort of commander who never understood the military justice system and then missed the point of law school.  Using the MCM will result in far more due process than the Federal civilian system would.  BG Martins educating the court and the defendants is hardly risible.

  3. Phil Cave says:

    I think many of the procedures in the MCM are quite fair.

    It seems to me that the Major League Baseball should emulate the MCM and establish a new rule that the home team gets to choose the opening pitcher of the visiting team.  That would seem to make MLB much fairer.

  4. publius says:

    Would the home team also pay for the pitcher’s…and everyone else on the visiting team, including trainers, coaches, scouts, special assistants to the traveling secretary…salary and travelling expenses too? 

  5. Phil Cave says:

    No, because the home team doesn’t want to spend money on the team.  They just want to pick the pitcher, sans team.  Thanks for pointing that out.

  6. publius says:

    In that case, whatever MLB would be emulating it’s not the MCM.  If MLB emulated the MCM, the home team would pay for the visiting team at replacement level (ie, league average) value. The visiting team would howl that Joe Blanton and Torrii Hunter are just are not sufficient, then demand Roy Halladay and Matt Kemp.  The home team would then respond that nothing’s stopping the visiting team from getting Halladay and Kemp, but its only paying for Blanton and Hunter. 

  7. Dwight Sullivan says:

    Combat 27A, the Manual for Courts-Martial doesn’t govern military commission proceedings.  The Manual for Military Commissions does.  And there are considerable differences between MCM procedure and MMC procedure.

  8. Another combat 27A says:

    I’m afraid that the good folks at CAAFlog are too biased to provide credible coverage of the military commissions. Lawfare Blog does a great job of unbiased coverage and academic discourse. The commenters here just seem to buy the anti-commissions rhetoric. The commissions are derived from federal court and MCM. From my understanding, the commission rules defer to the MCM when in doubt, and ate in the DC Circuit review chain. I’m not sure applying veritable sainthood on defense counse who openly demonstrate disdain for the military justice system, but attack BG Martins is a credible way to go. Obviously academic discourse is great, but credibility from the source also should be considered.

  9. Dwight Sullivan says:

    Another Combat 27A,

    10 U.S.C. 949a(b) provides, “In trials by military commission under this chapter, the Secretary of Defense, in consultation with the Attorney General, may make such exceptions in the applicability of the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need consistent with this chapter.”  Consistent with this provision, the Manual for Military Commissions differs in many respects from the Manual for Courts-Martial.  The Military Commissions Act of 2009 requires other departures from court-martial procedure.  The MCA also provides, “The judicial construction and application of chapter 47 of this title, while instructive, is . . . not of its own force binding on military commissions established under this chapter.”  10 U.S.C. 948b(c).  Paragraph 1 of the Preamble to the Manual for Military Commissions emphasizes that same point.  So the statement that “commission rules defer to the MCM when in doubt” isn’t accurate.

  10. stewie says:

    Methinks someone doth protest too much re bias. It rhymes with combat 27A.

  11. Combat 27A says:

    I assume Mr. Cave’s complaint has to do with the GCMCA selecting the panel. Maybe?  Of course that panel is selected generaly before the alleged crime has been committed so when the panel is selected they are supposed to be selected for their age, education, training, experieince, lenght of service and judicial tempermant.  Do we really think a random selection of people who bothered to register to vote draws a better jury pool?  Any system of course is only as good as the people using it, but if we think the people who are part of the military justice system are nothing but a bunch of stooges for “the man (or the woMan)” as the case may be, then many of us might as well pack up and go home.  In my limited experience in MilJustice (yay for being the generalist!) people worked very hard to ensure the rules provided both substantive and procedural due process.  YMMV of course.

    There are plenty of problems with the MilJustice system, but my experience tends to indicate those are at the lower levels of the system or the beginnigns of a case.  Being Commander driven, many Commanders simply throw up their hands at good cases but because they aren’t convinced the case is a slam dunk.  They simply PCS or chapter the accused, this serves no one as the perpetrators have no chance to rebut allegations and victims are simply sept aside.

    The NJP system of course is problematic, offset only by the only long term ramifications of being found “guilty” in the system generally does not follow you outside the military. I have heard anectdotal evidence of it following people, although I am not convicned, hence my qualifier.  I certainly see some jr enlisted do the calculus that it is better to take a short time shafting rather than risk a much bigger one.  And what does the TDS attorney recommend?  He/she may know the evidence is weak but certainly cannot promise an outcome.

    On both sides of the coin justice would be much better servced by taking more cases to Courts-Martial but that is something few of us can really influnece.  But of course these relatively minor issues in the MilJustice system aren’t at issue in the Military Commissions.

    (2) He suggested that the press should be skeptical of defense claims they are under-resourced and read the government’s filing on the issues. And he noted in Q&A that Congress had called for the defense to have comparable access to witnesses and evidence as provided in Article III courts. But what he did not tell the media was that military commission defense teams must go to the Convening Authority or the judge to seek resources, and unlike Article III courts must submit witness requests to the prosecution, and that the Guantánamo prosecutors contest almost every request made by every defendant. When the defense in a federal trial requires assistance from a court, they are typically allowed to make such requests on an ex parte basis with no opportunity for the government to object. And international criminal law – which should supply minimum due process standards for a trial supposedly based on the law of war – now calls for “equality of arms” between prosecution and defense, a standard clearly not met by the commissions.

    This strikes me as similar to the Military Justice system.  While they must request resoruces through the Convening Authority, if they are denied then they can appeal to the judge who is independently appointed.  The MCM and Military Justice system contemplate both sides being resourced completely by the Government, unlike the civilian justice system where the defendant recieves as much justice as he or she can afford.    There is an “equality of arms” – just because the defense does not necessarily get every specific expert they demand does not mean they are being denied substantive and procedural due process.  Moreover, the Rome Statute and the ICC not withstanding there is no specficially codified body of “international criminal law” and a governing body to which all parties have agreed to abide by the decisions of.  National sovereignty still counts for something.

    http://www.mc.mil/Portals/0/2010_Manual_for_Military_Commissions.pdf

    A review of those rules certainly reflects a procedure based on the MCM even if it does not ape it word for word.  Moreover in filling the gaps, Judge Pohl will certainly be informed by his MCM experience.

    The ones who are making this a joke is defense counsel with Mr. Nevins compalints about not being able to talk about interogration techniques and Ms. Boorman with her hijab and demand other women in the room dress similarly with  a claim the court needs to respect KSM’s “religious beleifs” nothwithstanding the hijab is cultuarl and not religious.

    Could this have been handled better? Of course.  Treat them as EPW’s and charge them with straight up murder.  But here we are.  

  12. Just Sayin' says:

    maybe people would be less skeptical if the trial counsel would be more candid…

    http://www.miamiherald.com/2012/03/01/2668993/al-qaida-magazine-didnt-reach.html

    But I’m sure the TC just misspoke and didn’t deliberately mislead the tribunal.  Unfortunately this innocent misstatement was the basis for a substative violation of the AC relationship.

  13. Dwight Sullivan says:

    Combat 27A writes, “The MCM and Military Justice system contemplate both sides being resourced completely by the Government, unlike the civilian justice system where the defendant receives as much justice as he or she can afford.”  But, of course, under the Federal Rules of Criminal Procedure, the Criminal Justice Act, and a bevy of Supreme Court decisions including Ake v. Oklahoma, 470 U.S. 68 (1985), indigent defendants in federal criminal proceedings receive a wide array of government-funded litigation assistance — and wiithout having to reveal their trial strategy to the prosecution to obtain it. 

  14. Just Sayin' says:

    DS,

    there you go, having to bring facts and the law into it.

    Can’t you just go along with the party line that this is a well-thought out, clearly fair, unbiased and valid legal system?