Very interesting discussion going on over at Lawfare about the jurisdiction of military commissions and courts-martial in reference to the al-Bahul case at the DC Circuit. Here and here, friend o’ the blog and NIMJ advisor Steve Vladeck takes issue with the government’s briefing in al-Bahul. Prof. Peter Margulies amicus counsel in the case, defends the government and amicus position and argues, here, that “[i]n drafting Article III, the Framers did not intend to restrict Congress’s ability to establish commissions to try noncitizen belligerents with no U.S. ties engaged in armed conflict with the United States,” regardless of the charges against the accused.
As a result of the Art. 32 IO report, “Murder charges against Sgt. 1st Class Michael Barbera in the 2007 shootings of two deaf, unarmed brothers in Iraq have been dropped — at least for now — but he will face court-martial trial on two lesser charges, the Army announced Tuesday.”. Pa. Tribune Review report here.
Report below from Monday, September 15, 2014 at the Al Hadi Military Commission hearing. NIMJ’s volunteer observer for this hearing was Leslie Esbrook, a student at Yale Law School. BZ to Leslie for taking time to go to Gitmo.
Hearings on AE013 Motion to Protect Against Disclosure of National Security Information, United States of America v. Abd al Hadi al-Iraqi
Monday, September 15, 2014
Hearings in the case of U.S. v. Abd al-Hadi al-Iraqi began at 1330 hours. Judge Waits introduced the new defense counsel, Lt Col Thomas Jasper Jr U.S. Marine Corps, who will replace Lt Col Callan. He read Lt Col Jasper’s legal qualifications into the record, and informed the defendant of his counsel rights given the change in counsel. Lt Col Callan will be excused as of October 1, 2014, but he will not be released from the case until September 30, 2014 because the new scheduling order will instruct parties to provide a sealed ex parte list of motions intended to be filed in the case, and Judge Waits believes that Lt Col Callan could be instrumental in identifying these legal motions. This means that the defendant will have two military defense counsel until the end of September, although he is only entitled to one. Judge Waits also read into the record the fact that all interpreters in the military commission had been previously sworn in, and notified the parties that a new scheduling order would be issued after the close of hearings today.
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Report below from last week’s Military Commissions proceedings at Gitmo. NIMJ’s volunteer observer for the proceedings was Prof. Chris Jenks, SMU Dedman School of Law.
Media Meeting With Prosecution and Defense
Sunday, August 10, 2014
The Office of Military Commissions (OMC) allowed the observers to sit in on the Sunday preview meeting between four media outlets and the Prosecution and Defense. The observers were not permitted to ask questions, however.
BG Martins spoke first and paraphrased written remarks he provided the media. He began by referencing 9/11 and told the story of one victim from the Trade Towers whose wife would be attending this week’s proceedings. He then explained how the week would likely unfold, first with oral argument in the government’s emergency motion to reconsider severance of US v Binalshibh from the other four 9/11 accused (AE 312). From there BG Martins envisioned the proceedings would turn to potential conflicts of interest in the Binalshibh defense team (AE 292), Hawsawi’s motion to sever his case (AE 299), a motion alleging defective referral (AE 8), and a motion alleging unlawful command influence (AE 31).
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Here is a link to Miami Herald coverage of Military Judge Colonel James Pohl’s ruling in the al-Nashiri case that requires prosecutors to reveal to al-Nashiri’s defense counsel some of the details of the black site CIA prisons he was held in for several years and some of the details of the interrogations. The order would also require similar disclosures in the in the 9/11 case against KSM.
And here is a link to Gene Fidell’s newest military justice venture, the Global Military Justice Reform blog, and an interesting PR debate at the commissions as counsel rotate out of jobs pursuant to orders–which is an issue that’s faced in courts-martial frequently. This gets more publicity because its KSM’s attorney that resigned his commission to continue his defense work. H/t RK
Report below from Monday, June 16, 2014 Military Commissions hearing. NIMJ President Dru Brenner-Beck files this report.
Counsel and accuseds present:
Khalid Sheikh Mohammed (KSM)/ David Nevin, MAJ Wright,
Walid Muhammed bin ‘Attash/ Cheryl Bormann/ LCDR Hatcher
Ramzi Bin al Shibh/ James Harrington, LCDR Bogucki
Ali Abdul Ali Aziz Ali (Ammar al Baluchi)/ James Connell, LTC Thomas
Mustafa Ahmed Adam al Hawsawi/ Mr. Walter Ruiz.
The Military Commission was called to order, and the Special Trial Counsel put his qualifications on the record. Defense Counsel accounted for the presence of their counsel, and Mr. Harrington had LCDR Trinhan as a member of the defense team and counsel of record.
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Bergdahl matter will have a two-star investigating officer, see DoD press release here and Army Times coverage here. The statements says:
The Army has initiated its investigation into the facts and circumstances surrounding the disappearance and capture of Sgt. Bowe R. Bergdahl from Combat Outpost Mest-Lalak in Paktika Province, Afghanistan on or about June 30, 2009. The Army has appointed as the investigating officer Maj. Gen. Kenneth R. Dahl, an Army officer with Afghanistan combat experience.
In related news, General Martins, former chief prosecutor for the military commissions told reporters that the five detainees traded for SGT Bergdahl could not have been prosecuted by the tribunals at Gitmo, Miami Herald coverage here.
On the Hill, Rep. John Kline introduced a bill to expand sexual assault victims services to reservists, Congressman’s website post here and here (The Hill). The expanded services would make victim advocates available to reservists regardless of when, where or by whom they were sexually assaulted. And the Senate also recently referred to the Veterans committee a bill that the House recently passed, HR 2527. The bill to provide counseling and other services to servicemembers that suffered sexual trauma during inactive duty or training, The Hill coverage here.
Continued testimony in the shadowy FBI investigation that led them to question Gitmo detainee defense team support staff members without disclosing the investigation to defense counsel. Miami Herald coverage here.
“Pretty’ soldier controversy results in removal of one officer and internal TRADOC investigation. Army Times coverage here.
A former Army pilot was sentenced to close to two years in jail for stealing more than $1 million in spare parts from the government during deployments to Iraq and Afghanistan. Watertow Daily Times reports here on the sentencing in Fayetteville.
Air Force Times reports here that more than 100 retired generals have signed on to voice opposition to Senator Kirsten Gillibrand’s. As the article notes, there are two competing proposals from Democratic Senators:
The 2013 Military Justice Improvement
Act, authored by Sen. Kirsten Gillibrand, D-N.Y., would move the decision whether to prosecute any crime punishable by one year or more to military attorneys. Commanders would still be responsible for deciding whether to send to court-martial 37 offenses, such as disobeying orders or being absent without leave.
The bill is the more controversial of two that propose changes to the Uniform Code of Military Justice aimed at reducing sexual assault across the services.
Sen. Claire McCaskill, D-Mo., has proposed a bill that would leave the power to prosecute crimes within the chain of command but strip commanders of the authority to change or dismiss a court-martial verdict except when the offenses are minor. It would also require a convening authority to hear from a victim before modifying a sentence — and provide a written explanation for any changes.
. Bahrain says it captured two suspected terrorist plotters who were previously held at Gitmo, Miami Herald report here. This is only the latest example of former Gitmo residents turning to the cause orb terrorism, see e.g. this Wiki page (which I can’t vouch forbthe accuracy).
Lawfare blog coverage here of yesterday’s oral arguments in Al Bahlul v US. This is the case we’ve blogged about previously that centers on whether certain charges are recognized under the Law of War and thus the governing version of the Military Commissions Act after the DC Circuit’s decision in Hamdan II. Everyone has predicted the government would lose, including the military prosecutors on the case, here. Lawfare sums up things:
In a sense, today’s lengthy en banc D.C. Circuit argument in Al-Bahlul was unsurprising . . . in that it did not disturb what has by now become (we gather) a widely-shared view: the question probably isn’t whether the government is going to lose its appeal to the full circuit court. The question is, instead, how it will lose.
WaPo reports here that two Marine Corps’ generals have been relieved in the aftermath of a Sep. 2012 Taliban attack on Camp Bastion in Afghanistan that left two Marines dead and several Marine Corps’ aircraft destroyed. Security at Bastion, a British run air base that adjoins Camp Leatherneck, was primarily the responsibility of the Brits. From WaPo:
The British are responsible for guarding Bastion, . . . British commanders had assigned the task of manning the towers to troops from Tonga, which has sent 55 soldiers to Afghanistan.
On the night of the attack, the Tongans left unmanned the watchtower nearest to the Taliban breach, according to an investigation by the U.S. Central Command.
Other aspects of the U.S.-British security plan were “sub-optimal,” the investigation found, with no single officer in charge of security for both Bastion and Leatherneck. . . .
Troop reductions also affected security measures. When Gurganus took command in 2011, about 17,000 U.S. troops were in his area of operations. By the time of the attack, in September 2012, the American contingent had dropped to 7,400 . . . .
Report below from Thursday’s (Aug. 22, 2013) Military Commissions hearing. NIMJ’s volunteer observer for this hearing was Daniel “Sparky” Abraham, a 3L at Yale Law School who is interning this summer at NIMJ. As I said in the post for this week’s other hearings, here (Aug. 19 hearing), here (Aug. 20 hearing), and here (Aug. 21 hearing), BZ to Sparky for taking time from his summer to go to Gitmo.
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Report below from Wednesday’s (Aug. 21, 2013) Military Commissions hearing. NIMJ’s volunteer observer for this hearing was Daniel “Sparky” Abraham, a 3L at Yale Law School who is interning this summer at NIMJ. As I said in the post for Monday’s and Tuesday’s hearings, here and here, BZ to Sparky for taking time from his summer to go to Gitmo.
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Report below from Tuesday’s (Aug. 20, 2013) Military Commissions Hearing. NIMJ’s volunteer observer for this hearing was Daniel “Sparky” Abraham, a 3L at Yale Law School who is interning this summer at NIMJ. As I said in the post for Monday’s hearing, here, BZ to Daniel for taking time from his summer to go to Gitmo.
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Report below from Monday’s (Aug. 19) Military Commissions Hearing . NIMJ’s volunteer observer for this hearing was Daniel “Sparky” Abraham, a 3L at Yale Law School who is interning this summer at NIMJ. Kudos to Daniel for taking time from his summer to go to Gitmo.
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Judge Osborn is reviewing voir dire questions submitted by MAJ Hasan in his own defense reports AP here (via Philly Inquirer). Notable form the story:
Osborn also refused Hasan’s request for a delay to hire an attorney. Hasan said Ramsey Clark – who served as U.S. attorney general under President Lyndon Johnson and as a lawyer for the dictators Saddam Hussein and Slobodan Milosevic – offered to represent him after hearing about his proposed “defense of others” strategy.
Is it just me or is it notable that both high profile Army cases are being tried before female military judges?
Judge Lind hears from the defense today. WaPo report on yesterday’s proceedings here.
And in Gitmo news, the 9/11 conspirators trials may be getting a nudge, see AP via Yahoo News here. Prosecutors are asking to set a schedule for pre-trial procedures and a September 2014 trial date.
LTC Wilkerson is free but still not on the O-6 promotion list reports Stars and Stripes here. The Secretary of the Air Force removed Wilkerson from the list in January and won’t put him back on the list unless the AFBCMR says he should. Amid calls for investigations of the CA for throwing out his conviction and reinstating him to fullVduty status, I’d have to think a promotion is . . . unlikely?
And from this month’s ABA Journal (okay, I am a week late) comes the story titled, “Meet the Man Who Would Save Guantanamo.” Who is this man, here’s an excerpt:
For a moment, U.S. Army Brig. Gen. Mark Martins seems discomfited. That is not his nature. In the words of a reporter covering the revamped military commissions now trying accused terrorists in Guantanamo Bay: “Don’t play poker with the man. He has no tells.”
But Martins is visibly stung when told reporters gripe that his lengthy, detailed responses to their questions sometimes don’t contain the direct answers they seek. He winces, holding a squint as he mulls the criticism, his sinewy 6-foot-3 frame folded erectly onto a small couch by a coffee table at one end of his office in a nondescript commercial area of Northern Virginia. His response at first develops in the fashion that brings the complaint: “You have to give them the context. We’re not in the same place we were five years ago. So using the same narratives and storylines when you now have a different statute—Congress has weighed in, we’ve had the judiciary weigh in.”
Martins catches himself in midsentence, then continues in a softer voice that trails off in thought: “So. I probably do. I hope they don’t think I’m pedantic. …”
Transparency has been Martins’ mantra, a theme he returns to often since being assigned in September 2011 as chief prosecutor, the sixth in 10 years, for the controversial military commissions in Gitmo.
Do you think the ABA Journal is right?
Jess Bravin of the Wall Street Journal will be doing another book talk about his recently published book about the military commission system. Tomorrow night from 1830 to 1930, the University of California Washington Center will present a conversation between Bravin and Professor Mikchael Shenkman of UCDC and Colombia Law School. The event will be at 1608 Rhode Island Ave NW, Washington, DC 20036. Here’s a link to the event’s website.