CAAFlog » Military Commissions

“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.

Read more »

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.

Read more »

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.

Read more »

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.

Read more »

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.

Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Thursday, February 14, 2013 [corrected].

* * * * * *

The final day of this week’s session opened with a brief discussion of the allegations raised by the defense the previous afternoon. Defense counsel represented that several defendants’ legal mail bins had indeed been searched while defendants were in court this week,resulting in the confiscation of multiple pieces of legal mail that had already been reviewed for content,cleared,and stamped as attorney-client privileged material. Defendants were present in court,and each brought a shallow plastic bin presumably containing their legal mail. Bin’Attash refused to sit down for some time and eventually attempted to address the court,saying that he had something important to say to the judge. “You make us come to court…,” he began,a reference to the court’s standing order that defendants appear on the first day of a session,and perhaps an accusation that this requirement gave the guards the opportunity to search the bins without the detainees present. The judge cut him off and advised his counsel that if the accused wished to testify,he would have an opportunity to do so under oath.

Read more »

Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Wednesday, February 13, 2013. The transcripts from this week’s hearings are available on the commissions website (here).

* * * * * *

Today’s first witness was a Navy judge advocate, a lieutenant who had been assigned to the SJA to JTF GTMO in 2011 and was responsible for handling HVD issues for a time after yesterday’s witness had been relieved from that position (who testified that he was fired shortly after expressing disagreement with the SJA’s policy of reviewing privileged attorney-client communications). The defense called him in support of defense motions 8 and 18, and the opposition to government motion 18, all of which generally deal with privileged mail communications.

Read more »

Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Tuesday, February 12, 2013. The transcripts from Monday’s and today’s hearings are available on the commissions website (here). .

* * * * * *

Court reconvened at 0900 with KSM, bin’Attash, and bin al Shaib present. The other two defendants had elected not to attend.

Resuming the litigation of AE 133, counsel for KSM called the civilian CCTV technology program manager, who is responsible for the recording and broadcast of audio and video of commission proceedings. The witness testified to the functioning of FTR Gold, a court-reporting system used at GTMO and also widely used in courts throughout the United States. He explained that all audio feed from every microphone in the courtroom is directed to a digital mixing board, which serves as a gate in the path of the sound. Only sounds above a certain decibel level – generally, between -40 and -60 decibels – passes through the gate. Some sounds near the threshold may be picked up, but not very clearly. The witness further testified that if a sound did not make it through the gate, it would not be able to be heard, even on the ungated feed.

Read more »

Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Monday, February 11, 2013. The transcript from Monday’s hearing is available on the commissions website (here).

* * * * * *

This morning’s session began with AE 133, the defense emergency motion to abate the proceedings due to the revelation at the last session that an out-of-court government censor was apparently controlling the audio feed unbeknownst to the defense or the judge. Counsel for KSM asked the judge this morning for an additional 24 hours after interviewing the necessary witnesses in support of the motion. He opined that his difficulty in scheduling those interviews was yet one more example of the prejudice to the defense caused by the government’s decision to hold the proceedings on a remote island in the Caribbean.

Read more »

Here (Feb. 4) and here (Feb. 5) are observations of the NIMJ volunteer observer at the proceedings in United States v. Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri on Monday and Tuesday, February 4 and 5, 2013.  Transcripts of the proceedings are available on the Military Commissions website, click through to the Al-Nashiri case and the transcripts drop-down menu.  NIMJ’s observer this week is Kevin Cieply, an Associate Professor at the John Marshall School of Law.  For those that don’t know, “Professor Cieply served for more than 22 years in the Army and Wyoming Army National Guard as a helicopter pilot and a Judge Advocate General Corps (JAG) Officer.”  Prof. Cieply reports that the next hearing dates are April 14 – 19, 2013.

So how do you feel when your detained forever client fires you?  See AP report via Yahoo News here.

State Department Office working to close Gitmo finally closes something . . . itself.  NYT report here.

Ghosts in the audio at Gitmo?  And why do they have to use the over-stretched Hanes tee picture of KSM everytime there is news?  If I never see that picture again I will be a happy man.  WaPo report on audio problems at recent commission hearings here.

Walid bin Attash “lashes out” at commission process over stacked odds and lack of any resolution.  LA Times report here.

H/t DefenseNews EB