I found on Politico that CAAFlog contributor Cully Stimson and other former President George W. Bush administration lawyers have come out against Keep America Safe’s demonizing of DOJ lawyers that served as pro bono counsel for Gitmo detainees. 

A group that includes leading conservative lawyers and policy experts , former Independent Counsel Kenneth Starr and several senior officials of the last Bush administration [No Man: including Cully Stimson] is denouncing as “shameful” Republican attacks on lawyers who came to the Obama Justice Department after representing suspected terrorists.

I can’t say for sure, but I would guess that means 100% CAAFlog contributor disagreement with Keep America Safe’s statements on pro bono counsel. But, I’ll wait to hear from our other contributors.

Update:  Here is a link to the letter, or the text of it, I can’t quite tell.  Here is a good quote form the letter:

To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.

Regardless of how you feel about The New York Times, even a stopped clock gets the right time twice a day. The Times recently published a story about Andrew McCarthy, the former SDNY AUSA who was on the prosecution team that worked the terrorism cases (pre- and post-9/11), and is now a vocal critic of the DOJ-centric approach to the fundamental question of how to bring terrorists to justice. The story is here:  http://www.nytimes.com/2010/02/20/nyregion/20prosecutor.html?pagewanted=1&hp

There’s strong feelings on both sides of the issue. McCarthy demonstrates both that there is a wide rift between the two extremes (where, on one hand, terrorism is a purely political issue, and on the other, purely a military one), and that in the middle there is a fundamental question of criminal procedure: no matter how we conceptually characterize the issue of terrorism, the practical application of any system of laws requires a robust infrastructure.

As a SAUSA I saw (and was awed and humbled by) the complexity of our Federal Courts and the way in which the policy and procedural rules for prosecutions are layered to an incredible degree; a prosecution before a Court-Martial is a comparatively simple matter. The Guantanamo commissions, I think, were designed to apply most of the best of both of these worlds to the trial of terrorists in a court of law. If the tenor of the debate over the handling of Umar Abdulmutallab (the Christmas Day bomber) is any indication of the future justiciability of terror issues, the commissions may also be a legal posthistoric edge of chaos to which we must inevitably return (see J. B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and Its Practical Meaning for Democracy, 49 VAND. L. REV. 1407 (1996)) (also see Francis Fukuyama, The End of History and the Last Man, Free Press (1992)).

Also, McCarthy is right-on about needing the Marines.

We’ve received an unconfirmed report that Vice Admiral Bruce MacDonald, the former Judge Advocate General of the Navy, will fill the military commission system’s convening authority role that CAAF Senior Judge Susan Crawford recently vacated.  Can anyone confirm or deny?

Here’s a link to audio of Tuesday’s oral argument before the Court of Military Commission Review in United States v. Hamdan.  (We previously posted a link to audio of Tuesday’s al Bahlul argument here.)

Today’s oral argument in Blazier, No. 09-0441/AF, concerning application of Melendez-Diaz to military drug testing lab reports, was exceptionally fascinating.  Audio is available here.  Audio in Huntzinger, No. 09-0589/AR, concerning whether servicemembers have any reasonable expectation of privacy at a Forward Operating Base, is available here.

Audio of today’s NMCCA oral argument in Saxman is available here. 

Finally, the Court of Military Commission Review heard oral argument today in two cases arising from military commission convictions:  United States v. Hamdan and United States v. al Bahlul.  Audio of the al Bahlul oral argument is available here.

As everyone surely knows, President Obama signed the FY2010 National Defense Authorization Act on Wednesday.  The Act contained provisions “upgrading,” my word, the Military Commissions Act of 2006, and thus does not utilize the UCMJ–it also does not utilize the military appellate courts as many of us had argued would be prudent, see link to Gene Fidell’s argument here.  The Act does not put suspects on par with courts-martial in all respects, but it is an improvement. 

The MCA amendments can be found here at Sections 1801-07.  When GPO prints Public Law No. 111-84 we will give you the new link.  Here is my least favorite provision.  

‘‘§ 948d. Jurisdiction of military commissions

‘‘A military commission under this chapter shall have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter, sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of Military Justice), or the law of war, whether such offense was committed before, on, or after September 11, 2001, and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized under this chapter. A military commission is a competent tribunal to make a finding sufficient for jurisdiction.

I just don’t understand how, with all the rhetoric of the campaign, the provision permitting trial by military commission for offenses committed “before or on” Septemeber 11, 2001 remains.  I won’t belabor the point.  See my rant here.

Also, an interesing Q&A from NPR, here, with Charlie Swift’s take on the amnedments.  Here is an excerpt:

On the legitimacy of military commissions:

A military judge recently remarked to me that as long as the process and rules of evidence [for military commissions] are inferior to federal courts, and cases are sent to commissions because of that perceived deficiency in evidence, the commissions will never be seen as legitimate.

If, instead of evidence or a perception of danger posed by the detainee, one bases the decision [on] what is the legally appropriate forum [to try detainees], the Law of War actually addresses the question.

Article 64 of the Fourth Geneva Convention dealing with occupations requires all persons detained by the occupying power to be tried by a non-political military tribunal sitting in the occupied territory.

So for the detainee that allegedly took part [in or] supported acts of sabotage and terrorism in Afghanistan, those persons should be tried exclusively in a military tribunal.

The problem with the commissions at the moment is that Congress politicized them by passing the 2006 Military Commissions Act after the Hamdan decision, rather than following the Supreme Court’s holding that the commission’s rules must comply with the longstanding Uniform Code of Military Justice, which is decidedly not a political court.

Gene Fidell writes here on Balkinization about the conference committee version of the DOD Authorization Act rejecting a move to establish CAAF as the direct review authority for military commission convictions.  Gene notes ways in which unlawful enemy alien combatants convicted by military commission will continue to enjoy greater rights than U.S. servicemembers receive, such as having a right to appeal regardless of the severity of the sentence and having a guaranteed path to filing a cert petition.

We had previously discussed a provision in the Senate version of the National Defnse Authorization Act for FY 2010 that would have given CAAF direct appeal jurisdiction over military commission cases.  That provision, however, isn’t in the conference committee’s version of the bill, which is available here.  The first level of appellate review remains with the Court of Military Commission Review, which is comprised of a mix of CCA and civilian judges.  The second level of appellate review remains with the D.C. Circuit, with discretionary review by the Supremes.

As we reported last week, the military defense counsel representing accused terrorist Ramzi bin al Shibh recently filed a petition for a writ of mandamus broadly attacking the constitutionality of military commissions in general and rulings by the military judge and convening authority in their client’s case in particular. In response, the government alleged that the circuit court lacks jurisdiction to hear interlocutory appeals in MCA cases, and defended the actions complained of by the defense.

The government also informed the appellate court that it planned to seek a sixty-day continuance of the competency hearing that had been scheduled to begin this week.  The military judge, Army Colonel Stephen Henley, has granted the continuance.  A copy of his order appears here:  [PDF].

The government’s reply to the writ petition filed by two Navy JAGs in the bin al Shibh case (discussed here) is now online.

The government argues broadly that, inter alia, the court lacks jurisdiction to entertain interlocutory matters in MCA cases.  Not surprisingly, the government also disputes some of the factual assertions made by the defense. The competency issue at first glance appears to be one of those disputed; but on closer examination, the government does not appear to challenge the defense’s assertion that bin al Shibh may not be competent to “conduct or cooperate intelligently in his own defense.” The government has agreed to continue bin al Shibh’s competency hearing for sixty days.

The government brief can be found here: [PDF].