CAAFlog » Military Commissions

Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was ordered into confinement today by Air Force Military Judge Colonel Vance Spath, who found the General in contempt for in connection with the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole).

Carol Rosenberg of the Miami Herald reports here that:

The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow his orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

. . .

In court Wednesday, Baker attempted to protest that the war court meant to try alleged foreign terrorists had no jurisdiction over him, a U.S. citizen. Spath refused to let him speak and ordered him to sit down.

“There are things I want to say, and you are not allowing me to say them,” Baker told the judge.

Spath replied, “This is not a pleasant decision,” calling the proceedings neither “fun” nor “lighthearted.”

. . .

The judge said in court that a senior official at the Pentagon, Convening Authority Harvey Rishikof, would review his contempt finding and sentence. Meantime, however, he ordered court bailiffs to arrange for the general to be confined to his quarters — a room in a trailer at Camp Justice, behind the courtroom — until Rishikof acted or found a different place.

Rishikof had approved the site provisionally, Spath said, and was permitting Baker to have internet and phone communications at his quarters.

Additional details about the release of the three civilian attorneys is available in this report (also from Miani Herald reporter Carol Rosenberg).

A variety of outlets (here (FoxNews) and here (The Hill)) report on the POTUS’s decision to defer to SecDef Mattis on whether the US will use interrogation methods that some have argued constituted torture under international law. It is unclear if SecDef’s view, which is that the US should not use interrogation techniques such as waterbording because they do constitute torture, will be applied to DOD actions abroad or all US agency actions abroad. The Army Field Manual has always prohibited torture, including waterboarding, so DOD operations are clearly governed by SecDef’s view. But it is unclear if CIA covert actions would be bound by SecDef’s view. 

Thoughts on how US policy on torture has now been shaped by judge advocates?  Anyone ever advise then-General Mattis on this topic?

The Miami Herald reports here that in the aftermath of the apparent unlawful command influence issue in the Commissions, involving a since-rescinded requirement that judges live at the venue of the trial (Guantanamo Bay) for the length of the trial, “the military judge presiding at the USS Cole death-penalty trial ordered the Pentagon to replace the senior official and his staff overseeing the war court process.”

Spath, in court Monday, called dismissal “not appropriate” in this instance. Instead, he disqualified [the convening authority, retired Marine Major General Vaughn] Ary and four lawyers who worked on the move-in requirement: retired Army Col. Mark Toole, Army Reserves Lt. Col. Alyssa Adams, Navy Reserve Cmdr. Raghav Kotval and Army Lt. Matthew Rich.

He ordered the Pentagon to replace them with new staff for the purposes of the USS Cole case — meaning a new convening authority would fund and assign Nashiri’s legal team resources and pick the pool of military officers for his eventual jury.

Update: Wells Bennett has an excellent writeup of Col Spath’s order in this post at Lawfare Blog.

Thanks to a Commenter, we now have the rescission of the order (here) that MC judges move to Gitmo until the cases are completed.

Here is a link (courtesy of Lawfare) to the Hicks case decision from U.S. Court of Military Commissions Review (USCMCR) .  The Feb. 18, 2015 decision (I am a little tardy), after finding that Hicks waiver of appellate review . . . didn’t waive appellate review, set aside his guilty plea to providing material support to terrorism, in violation of 10 U.S.C. § 950v(b)(25) (2006), and the sentence based on Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (en banc).  If you’ll recall, here (Lawfare), Al Bahlul found that (as summarized by Judge Kavanaugh):

A military commission may not try the offense of material support for terrorism for conduct that occurred before enactment of the 2006 Act. All seven judges likewise conclude that a military commission may not try the offense of solicitation for conduct that occurred before enactment of the 2006 Act. The Court is unanimous that those two offenses were not war crimes triable by military commission at the time of Bahlul’s conduct in 2001. Therefore, all seven judges agree that we must vacate Bahlul’s material support for terrorism and solicitation convictions as ex post facto violations.

Since Hicks has long since been released from Gitmo, this doesn’t do much for him.  His defense counsel should get an astro-turf rug in front of his door (sorry, bad Code 45 tradition). WSJ coverage here.

More to follow, here is the order.  Prior coverage from the WSJ here.

Here (Feb. 12, 2015), here (Feb. 11, 2015), and here (Feb. 9, 2015) are links to reports from the US v. Khalid Sheikh Mohammed, et al. (9/11 conspirators) Military Commission hearing. NIMJ’s volunteer observer for these hearings was NIMJ President Dru Brenner-Beck.

Here (Sep. 26 Part 1), here (Sep. 26 Part 2), and here (Sep. 28) [Update:  here (Jan. 29, 2015)] are links to reports from Monday, September 26, 205 and Wednesday September 28, 2015 at the Al Hadi Military Commission hearing. NIMJ’s volunteer observer for these hearings was Malcolm Savage, a student at the University of Richmond School of Law.  Thank you Malcolm for taking time to go to Gitmo.

Did anyone catch the PBS Newshour piece on “How military sex offenders fly under the radar after returning to civilian life“?  Discusses the disconnect between sex offender registries and court-martialed sex offenders.

The murder trial at Ramstein is underway.  Wednesday featured a videotaped confession by the accused, Air Force Staff Sergeant Sean Oliver, according to Stars and Stripes, here. Oliver is charged with the murder of Navy Petty Officer Dmitry Chepusov.  The “four hours of video [was] recorded during an interview of Oliver by Air Force special agents at Ramstein Air Base in late December 2013. The interview was conducted five days after German police pulled Oliver over during a traffic stop and found Chepusov dead in his car’s passenger seat.”

Fat Leonard (aka Leonard Francis), the head of Singapore based logistics firm Glenn Defense Marine Asia who ensnared several officers in a bribery scandal, will plead guilty today before a US Magistrate in San Diego, here (San Diego Union-tribune).

A human interest piece on the Navy Victim’s Legal Counsel program from S&S here.

Reps. Duncan Hunter, R-Calif.; Ryan Zinke, R-Mont.; and Matt Salmon, R-Ariz., have taken an interest in the convening authority action in 1stLt Clint Lorance’s case here (Army times).  Lorance was convicted and sentenced by a court-martial in August 2013 to 20 years in prison for ordering his platoon to open fire on two Afghan men in July 2012. Prosecutors contended that the officer violated ROE and that the men had not demonstrated hostile intent. New evidence included in a clemency petition to the CG of the 82nd Airborne deals with the status of the two men that were shot as potential insurgents/jihadists.  Prior coverage here and here.  Now if other members of Congress have their way, will this portion of the system even be available?

Five more Gitmo detainees were released the Pentagon announced on Wednesday, USA Today report here.  The report states that, “All five were captured in Pakistan and detained by the U.S. as suspected al-Qaeda fighters. U.S. officials determined it was no longer necessary to detain them but decided they couldn’t be sent to Yemen because of instability there.”

Below the jump is a report from observer  Eric Carpenter, Professor of Law at Florida International University, on the commission hearings in the case of Al-Rahim al-Nashiri on November 5 and 6.

Other observer reports can be found in our Military Commissions category.

In a related development, this week’s scheduled oral argument before the Court of Military Commissions Review in al-Nashiri (discussed in TWIMJ) was postponed by order of the D.C. Circuit, which granted a stay in the case. Wells Bennett has the details in this post at Lawfare blog.  Thanks to Zee for helping draft this post while I had technical diffculties.

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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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