Josh Gerstein at politico.com reports that:

Military officials have determined that official transcripts of military commissions held for key terrorism suspects at Guantanamo Bay must be treated as “top secret,” even when members of the public, the press and victims’ families have witnessed the entire proceeding, according to a recent legal filing.

The post includes a link to a “Defense motion for a consistent, coherent policy concerning classification of court proceedings.”

It’s nice to be reminded, from time to time, that Georges Clemenceau didn’t say “military justice blogs are to blogs…,” but instead said “military justice is to justice what military music is to music.”

The Washington Post reports:

The new commander of the Guantanamo Bay prison wants a team of government and law enforcement officials to be allowed to review all communications between lawyers and inmates accused of helping organize the Sept. 11 attacks, The Associated Press has learned.

We’ve covered such efforts to review correspondence between detainees and their counsel before, including consideration of the professional responsibility implications. However, Steve Vladeck over at Lawfare Blog takes it to a whole different level:

Separate from the policy side of this story, there’s a critical legal issue here that hasn’t yet been resolved: The AP story reports that one of the objections lodged by counsel for the defendants is that the new rules violate the defendants’ constitutional right to counsel. Of course, that assumes that the Guantanamo detainees, as non-citizens detained outside the territorial United States, have a Sixth Amendment (or perhaps a Fifth Amendment) right to counsel. Below the fold, I attempt to explain why this is, at minimum, an open question (albeit one that I think should  be answered in the affirmative).

If nothing else, this provides good context for the NCO who thinks he’s being railroaded.

Superseding indictment in PFC Nasser Abdo’s case is available here and USAO press release is here, background from San Antonio Express-News here.  Abdo of plot to blow up the IHOP outside Ft. Hood fame, prior coverage here.  H/t JNSLP.

A hodge-podge of military commission related news:

• USS COLE Bomber commission trial starts topday, see LA Times report here.
• Carol Rosenburg reports, here, on the rather high cost of running the military prison at GITMO.

A little more on the espionage charges against SPC William Millay from the Boston Herald, here.  I saw this before, but this statement in the Herald report bothers me more now that this is the basis for the case and all the secrecy about the charges, “”Millay had access to the information through the course of his normal duties both stateside and on a previous deployment, and although the information was unclassified, Millay believed that it could be used to the advantage of a foreign nation,’ the Army statement said.”

The Capital reports, here, that there is another Naval Academy rape case.  MIDN 1/C Matthew Cook is alleged to have raped a former “classmate . . . .  during a 2010 summer assignment at the Naval Academy Preparatory School in Newport, R.I.”  For those wondering, the allegations involve a night drinking out in town in Newport in August.

On Nov. 7th the DoD released new regulations for trial by military commission. The regulations can be accessed from the Commission web site, here.

Here (and here) is a WaPo story about a letter from uniformed defense counsel for Gitmo detainees protesting the apparent invasion of their attorney-client privilege by DoD when DoDo offiicals ordered review of all “legal mail” between detainees and their counsel.  I wonder at what level attorneys covered by JAGINST 5803.1C were involved in the decision to review A-C privileged these communications and the Professional Responsibility implications of this policy? 

UPDATE:  Here is a copy of the letter to DASD Lietzau.

Co-authored by Mike “No Man” Navarre

Fort Hood Shooting Trial Could Take New Turn

After the killing of Anwar al-Awlaki last week, the court-martial of Maj. Nidal Hasan is necessarily impacted by reports that suggest Hasan was motivated by terrorism, the Austin American-Statesman reports, here. Before, observers doubted that the prosecution would bother focusing on the fact that Hasan had communicated by email with al-Awlaki because he is not facing terrorism charges and they already have a wealth of evidence to prove their case. Now, military law expert (and NIMJ Advisor) Geoffrey Corn speculates that defense attorneys could, if they can get them in discovery, use the emails to show Hasan was manipulated by al-Awlaki, in hopes of saving him from the death penalty.

The Gitmo Detainee Debate Continues

A guest commentary by COL (Ret.) Lawrence Wilkerson in the Detroit Free Press, here, notes that jury selection for Abdulmutallab – the underwear bomber – will begin soon.  Concurrently, Congress is debating provisions in a defense authorization measure that will require that terrorism suspects be held only in military custody and allow indefinite detention for terrorism suspects even if they are American citizens. The irony, according to COL (Ret.) Wilkerson, is that the “swiftness with which federal law enforcement officials were able to bring Abdulmutallab to trial is the latest powerful argument against over-reliance on military to combat terrorism.”

Say what you want about our military justice system . . .

The Guardian (Nigeria) reports, here, that Migerian Brig. Gen. Muraina Raji, was discharged and acquitted at a special court martial on charges of neglect in his duties related to the escape  of two Boko Haram suspects from a detention facility. Afterward, he was convicted on “special findings” that weren’t charged that the general failed to “show interest” in the high profile detainees. He was sentenced to three months loss of seniority.  The general’s defense counsel reportedly criticized the verdict saying, “Thus the special court martial turned itself into the accuser, the prosecutor, the witness and the judge in a criminal case, contrary to all known canons of natural justice.”  See here.

Here is WaPo’s update on the progress of the death penalty commission case against Abd al-Rahim al-Nashiri, who is “charged . . . . with murder, terrorism and other violations of the laws of war for his role in the October 2000 al-Qaeda attack on the USS Cole in Yemen.”  This post is mainly to highlight a statement attributed to a friend o’ CAAFlog,

Under the reformed system of military commission, the government cannot use any statements obtained under torture. And prosecutors are unlikely to rely on any statements Nashiri made while in CIA custody.  But one of Nashiri’s attorneys, Navy Lt. Cmdr. Stephen Reyes, has warned that he intends to call CIA officials involved in his client’s interrogation to the stand.” 

Who says counsel in these cases aren’t independent?

Co-authored by Freda Carmack

ABC-7 reports, here, that Staff. Sgt. Andrew Sims, a military nurse, is facing a court-martial for allegedly giving a fatal dose of a lethal drug to an Iraqi teenager who was badly burned, in what has been described as a “mercy killing.” Sims’ lawyer insists that there is no medical evidence to support these claims.  See coverage of the acquittal of an Air Force nurse two years ago in another alleged act of mercy, at a stateside US military hospital, see here and here.

According to the Miami Herald, here, when Army Brig. Gen. Mark Martins takes over as the new Chief Prosecutor of Military Commissions next month, he brings with him big ideas to help enhance the transparency of the Guantanamo trials.  Most significantly, “near-real-time” transmissions of the trials will be streamed to reporters and victims in special venues within the United States.  As several of NIMJ’s affiliates have experienced, observers used to have to fly to Guantanamo on special flights in order to view the proceedings, and they faced restrictions on what they could report. This change is significant, as some of the cases set to go to trial include that of the “architect” of the USS Cole bombing and a 9/11 plotter.  This is not to say there will not still be restrictions. Transmissions will be subject to a “40 second delay” to protect “national security information.”   In the article, Martins is described by DoD General Counsel, Jeh Johnson, as “a recognized superstar” who is dedicated to making military commissions “credible and sustainable.” It will be interesting to see what other changes he has in store.

According to the New York Times, here, “the first five witnesses [in the trial of former Egyptian President Hosni Mubarak], all police officials, recanted what prosecutors said were initial statements about instructions from senior police officials to use live ammunition or other force against demonstrators.”   Mubarak’s trial is a combination of criminal trial and civil trial, with victims’ families being represented by plainitffs’ lawyers.  The trial was suspended after the plainitffs’ lawyers raised bias objections to the presiding judge, see UPI report here.

The Lawfare blog has posted the CMCR’s al Bahlul opinion, which was released Friday, here.

Service on the CMCR is basically a collateral duty for some CCA judges.  The court that affirmed al Bahlul was comprised of Judge Price from NMCCA, who wrote the opinion of the court, Judge Sims of ACCA, who wrote a concurring opinion, Judge Gallagher of ACCA, Judge Perlak of NMCCA, Judge Brand of AFCCA, and Judge Orr of AFCCA.

On Friday, the Court of Military Commission released this 86-page unanimous per curiam en banc opinion affirming the military commission conviction of Salim Hamdan.  While I don’t normally note military commission developments on this blog, I’ve posted this opinion because the Court of Military Commission Review consists of CCA judges dual-hatted as appellate judges in the military commission system.  There were some recusals, so the unanimous en banc decision wasn’t actually joined by all of the Court of Military Commission Review’s judges.  The seven judges who joined the en banc per curiam opinion consisted of four ACCA judges, three AFCCA judges, and one NMCCA judge.

The opinion is designated as “Published.”  I’m not sure what the reporter is for CMCR decisions; will it be in West’s Military Justice Reporter?  If not, where will it be published?  Any intel on that point from our readers would be appreciated.

On June 9-10, 2006, three detainees at Guantanamo Naval Base, Yasser Al-Zahrani, Salah Ali Abdullah Ahmed Al-Salami, and Mani Al-Utaybi, committed suicide. Some would have you believe that their cause of death was due to something more “nefarious” (and those who know me know how  I despise that word) . We’ve called such assertions “guano-crazy” in the past. Now, they’re on their way to the D.C. Circuit.

Turns out that the father and brother of two of the deceased detainees filed suit, had their claim dismissed, and have now appealed that dismissal. The issues are:

1. Whether the district court abused its discretion  in  concluding  on the basis of Rasul II that “special factors” categorically bar a Bivens’ remedy for the alleged killings of Appellants’ relatives,  when courts routinely adjudicate cases that implicate foreign policy and national security?
2. Whether the district court erred 1) in failing to address whether Appellants had alleged a violation of the Fifth Amendment because of reliance on Rasul II  and  2)  in  concluding  that Rasul II  controls  this  case  and  protects Defendants for alleged conduct through June 2006?
3. Whether the district court abused its discretion  in  beginning  and ending its scope of employment inquiry with whether Defendants were “on the job” when Appellants had raised multiple prongs of  the Restatement test in light of their new evidence?
4. Whether grave violations of international law can ever be within the scope of employment of U.S. officials?
5. Whether the district court abused its discretion in denying Appellants the opportunity to amend their complaint with  the new  evidence of the killing and cover-up of the deaths of their relatives?

The appellants’ brief is available here.

I’ll spare you a dissection of the brief, which would be extensive. However, the brief is remarkable for a number of reasons (that begin with the impressive list of defendants;  any group that includes Donald Rumsfeld, Peter Pace, and “John Does 1-100″ is sure to raise eyebrows), but most relevant to this blog is the following paragraph, found on pages 50-51 of the brief:

As discussed above, the new evidence here is nothing less than the eyewitness accounts of four decorated soldiers who were on duty at Guantanamo the night Appellants’ relatives died and were compelled by their consciences to come forward four years later at great professional and personal  risk  to  reveal  what  they  had  seen.  Their direct observations undercut key findings of  the NCIS report and provide evidence of a cover-up, and point to a different set of circumstances under which the men died not by their own hands in their cells, but at the hands of the authorities at an off-site facility outside of those authorized for military detention and interrogation.  The accounts of these soldiers are material, credible and extraordinary under the circumstances, and certainly enough to merit reconsideration of the court’s prior holding—one that was premised on a materially different set of facts.

(emphasis added)

Now, I’ve never been to Guantanamo (despite my many requests to work on the Commissions), but I believe Col Sullivan’s description of what is and what isn’t past the left turn at ACP Roosevelt. Actually, multiple descriptions.

There’s a good debate to be had about “enhanced interrogation techniques,” the validity and viability of the commissions, and the consequences of the Global War on Terrorism on customary international law, but the existence and significance of “Camp No” is undoubtedly a sideshow.

Thanks to Lawfare Blog for the brief.

The Washington Post has the story here, but it might have something to do with this quote:

“They told Obama, ‘You can fight this, and you’ll lose, and it’ll spill over into everything else,’ ” one administration official said, referring to the president’s political advisers.

Our very own Cully Stimson testified before Congress today concerning military commissions.  Here’s a link to his written statement to the House Subcommittee on Crime, Terrorism and Homeland Security and here’s a link to his oral testimony.

UPDATE:  NIMJ’s blog has a detailed report about the hearing here.

NYT says that the Attorney General Holder will announce later today (at a 2 pm press conference) that the 9/11 Conspirators (including Khalid Sheik Mohammad) will be tried by military commission.  As everyone knows, here is where I stand on that.

H/t JNSLP.

Update from DOJ press release:

In November 2009, I announced that Khalid Sheikh Mohammed and four other individuals would stand trial in federal court for their roles in the terrorist attacks on our country on September 11, 2001.

As I said then, the decision between federal courts and military commissions was not an easy one to make. . . . After consulting with prosecutors from both the Department of Justice and Department of Defense and after thoroughly studying the case, it became clear to me that the best venue for prosecution was in federal court. I stand by that decision today. . . .

 Unfortunately, since I made that decision, Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue. As the President has said, those unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security. Decisions about who, where and how to prosecute have always been – and must remain – the responsibility of the executive branch. . . . We will continue to seek to repeal those restrictions.

But we must face a simple truth: those restrictions are unlikely to be repealed in the immediate future. And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice.

Ok, actually it was the National Congress of American Indians on behalf of the Seminoles, see Miami Herald story here.  This statement in a government CMCR brief, that argued material support for terrorism is a historically recognized crime at military tribunals, unsurprisingly ruffled a few feathers,

Examination of [the case of two Seminole War military commission accuseds] reveals that their conduct was viewed as wrongful, in that they were assisting unlawful hostilities by the Seminoles and their allies. Further, not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violated the customs and usages of war. Because Ambrister and Arbuthnot aided the Seminoles both to carry on an unlawful belligerency and to violate the laws of war, their conduct was wrongful and punishable.

The Herald helpfully posts  the source doucments, government brief, NCIA letter, and government response to NCIA letter.  I just thought this story was interesting and a good history lesson.