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

With all the talk about the military’s “inadequate” prosecutions of sexual assault cases, it’s easy to forget that military prosecutors lack some of the discretion of their civilian counterparts. Even when the prosecutor himself wears stars:

The Pentagon delivered an embarrassing public blow Friday to the chief prosecutor for the military commissions at Guantanamo Bay, Brig. Gen Mark Martins, rejecting his request that certain charges against the alleged September 11 plotters there be dismissed in order to reduce legal uncertainty about the cases.
. . .
On Friday, the Pentagon issued a press release saying that the convening authority for the military commissions, retired Vice Admiral Bruce MacDonald, had rejected Martins’s request to drop the conspiracy charges.
. . .
“The convening authority noted that dismissal at this time would be premature, as the viability of conspiracy as a chargeable offense in trials by military commission is still pending appellate review,” said the Pentagon release, which did not identify MacDonald by name. The release said he noted that “Congress included conspiracy as a chargeable offense in the Military Commissions Acts of 2006 and 2009, and that two Presidents had signed those Acts into law,” that the Justice Department maintains the charges are still viable and the issue has not been definitively decided by the courts.

The effort to dismiss the charges is part of the continuing fallout from the D.C. Circuit’s decision in Hamdan II, finding that a charge of material support for terrorism for pre-2006 conduct cannot be brought before a military commission, because material support is not a traditional war crime under the international laws of war. More details in this Lawfare post, that also calls the 9/11 prosecutions “an embarrassment of charging riches for a prosecutor.”

The Chief Prosecutor for the Military Commissions sat down for an interview with the folks at Lawfare to discuss his decision to drop conspiracy charges in the Khalid Sheik Mohammad et al (9-11 conspirators) trial in the wake of the DC Circuit’s decision in Hamdan II.  Here is a link to the Lawfare post with the embedded audio.

Here is our coverage of the Hamdan II decision finding material support of terrorism charges to be imperissible charges under the MCA because they weren’t then recognized as violations of the law of war under 10 USC 821. We discussed the split with DOJ as they pursue appeals of conspiracy charges in other cases this morning, here.

Military lawyers apparently lost out again to their civilian counter-parts as the Obama administration will pursue an appeal to press the validity of conspiracy and material support of terrorism at military commission trials, see NYT report here. I will never understand how the foremost law of war experts in our government are consistently overruled on issues concerning the law of war.

In other military commissions news, here, Judge Collyer in D.C. District Court ruled information that may be helpful to a detainee to obtain his release from Gitmo after being held for 10 years without charges does not need to be given to the detainee or his counsel because of the sensitivity of the information. Judgr Collyer also ruled the information should be available to the judge determining the detainees status for continued detention. More from Lawfare (with a link to the opinion) here.

PFC Manning case revelations, via NYT, here, and UPI, here, which now reportedly won’t start until Jun. 3, 2013, at the earliest:
• Osama bin laden was interested in the information Manning provided to Wiki[shhh].
• The convening authority would have pursued Manning had he dumped his trove of classified info on the New York Times (and presumably DOJ would have pursued the NYT as well).

Not sure how these three issues are related, but a report from the Wash. Times says DoD is moving forward with initiatives to get female soldiers/Marines and officers closer to the battlefield even after several senior officer scandals involving women and news of increased sexual assaults in DoD have occupied the minds of politicians.

An Army Major pled guilty in US District Court to receiving gratuities in return for awarding contracts for supplies and services to local vendors in Iraq reports the AP, via FoxNews here.

Air Force Staff Sergeant Christopher Jackson pleaded guilty to charges stemming from the Lackland basic training instructor debacle, including charges that he instructed one of two recruits he had sex with to lie to investigators, here. Jackson was sentenced to 100 days confinement, 30 days hard labor and reduction to Airman First Class. He did not receive the BCD trial counsel requested, though as a 10 year Airman First Class he’ll likely be separated for high year tenure, no? Any Air Force admin law bubbas out there able to answer that one?

Judge Pohl’s Dec. 20th ruling in the 9/11 military commission trials preventing attorneys from telling the media about even unclassified information was released yesterday. According to the LA Times, here, the order stated that “the attorneys cannot share unclassified information dealing with law enforcement and the military, nor surveillance information, medical records, autopsy reports and the names of the military commission jurors, witnesses and others connected to detention operations.” I’ll post a link to the order once I get on-line [Updated:  Ruling here and protective order here.]

Here is a WSJ report on the Kansas Supreme Court’s decision to disbar former LCDR Matthew Diaz. The court ignored recommendations that would have allowed Diaz to resume the practice of law.  See our prior coverage here. Here is a link to the opinion.

Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Thursday, Oct. 18th. The transcripts from all of last week’s hearings are available on the commissions website (here). Coverage and observations from last week’s hearings are also available at Lawfare (here) and the ACLU (on First A. issues, here). See also some interesting commentary (here) from David Frakt, a former lead defense counsel in the Military Commissions and NIMJ Advisor, on Hamdan and the military commissions. NIMJ’s observer this week is Kieran Doyle, a partner at the New York firm of Cowan, Liebowitz & Latman.

* * * * * *

On Friday October 19, 2012, none of the defendants attended the hearings.  Through testimony, the prosecution established that the defendants had all waived their right to attend the hearings. Highlighting the oddity of an unnamed witness, rather than asking the Commander to state her name, Mr. Swan, for the prosecution, asked “are you the same Commander who testified Tuesday, Wednesday and Thursday.”

The hearing really picked up steam on this last day. It seemed that more motions were addressed this last day than had been addressed all prior days this week. Hence this rare lengthy summary. Except as specifically indicated below, the Judge took the motions under advisement for future decision.

Read more »

Here is news from the AP (via ABA Journal) that former LCDR Matt Diaz is fighting to keep his Kansas law license.  The ABA Journal writes that:

The Kansas Supreme Court will hear arguments today on a recommended three-year suspension for Matthew Diaz, the Associated Press reports. The suspension would be retroactive to 2008, making Diaz eligible for reinstatement. Diaz’s lawyer, Jack Focht of Wichita, supports the recommendation.

We’ll see if he gets reinstatement.  At least he can tell the reinstatement panel that he has a Ridenhour Truth Telling Prize for the conduct that got him suspended for three years–so he’s got that going for him.

H/t MLM