CAAFlog » Military Commissions

Carol Rosenberg reports here:

Friday morning, on the last day of a weeklong hearing in which Eliades and Spears ignored prosecution subpoenas to appear at court by video feed, Spath assembled defense and prosecution attorneys in the court and offered a 30-minute monologue.

He listed his frustrations at having his orders ignored, uncertainty over his authority raised by the Marine general’s decision-making and inaction by Pentagon officials to help him. At one point he said he was considering retiring from the Air Force, then declared that he needed clear answers on how to proceed.

“I am abating these proceedings indefinitely,” he said twice, at one point adding: “We’re done until a superior court tells me to keep going.”

He then walked off the bench at 10:12 a.m., declaring: “We are in abatement. We are out. Thank you. We’re in recess.”

Update: Transcript available here

Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri is a Saudi accused of orchestrating the 2000 bombing of USS Cole. According to the commissions website:

Al-Nashiri is charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel. The charges arise out of an attempted attack on the USS THE SULLIVANS in January 2000, an attack on the USS COLE in October 2000, and an attack on the MV Limburg in October 2002.

Carol Rosenberg of the Miami Herald provides this update from the al Nashiri proceedings at the Guantanamo commissions:

A war court judge, reversing himself from remarks a day earlier, said Wednesday that he was still deciding whether to send U.S. Marshals to pick up two civilian defense lawyers who quit the USS Cole case and then ignored a subpoena to appear at the war court.

“I said very clearly yesterday that I want draft options … I haven’t decided yet to issue any writs,” Air Force Col. Vance Spath said at the opening of a third day of a weeklong hearing that has mostly focused on the presentation of evidence to the judge before a jury is seated and the trial begins.

Carol also reports:

On Wednesday morning, the judge said the night before he was reading an online military justice blog, CAAFlog, as part of his professional responsibilities and saw a reference to a Miami Herald article about his order to the prosecution to prepare arrest warrants for Eliades and Spears. They had ignored a subpoena to appear before the court by video feed on Tuesday.

Spath said the article misrepresented his request for the writs and left the impression that he was ordering the lawyers forcibly brought to Guantánamo. If he has them seized, he said, they will be brought to war court headquarters in Washington, where the court has a secure video link to the maximum-security court.

The post is available here, and did indeed imply that the warrant would be to bring the attorneys to Guantanamo because that’s what I though Colonel Spath was suggesting based on my knowledge of the case and the orders Colonel Spath previously issued to the civilian defense counsel to appear and represent al Nashiri (outlined in a comment here). But I updated my post on Wednesday after I reviewed the transcript of Tuesday’s proceedings (available here), to reflect that a warrant would be to appear in Virginia.

That transcript from Tuesday, by the way, quotes Colonel Spath as saying:

So what I would like is some homework overnight. Would you at least craft the two writs. Because I’m going to issue warrants of attachment — I plan to do it tomorrow — to have them brought sometime on Thursday or Friday.

Transcript at 11910 (emphasis added). The certainly looks like a decision to issue the warrant.

I will update this post when the transcript of today’s proceedings is available.

Update (Feb 15, 2018 @ ~2pm eastern): The transcript of the proceedings is available here, and includes the following statement by Colonel Spath:

And yes, I use CAAFlog. I don’t read the comments and I tend not to read the analysis; I don’t need their help, because some people suggest it has a bias. But what I appreciate about them is they tell me what cases have been decided, what cases are of interest. And then I can click on those links and go right to the case and I can read the case law, right, from CAAF or from AFCCA, or from the Supreme Court, and I can keep track of even cases that are affecting us. Seems like a reasonable one-stop shopping mechanism.

So I was a little surprised last night when I opened it to find this case making their — the top of the banner, and noticed very quickly that it said that I had ordered, or was going to order today, writs be issued against civilians to be dragged to GTMO. Imagine my surprise. Fortunately, there was a link to figure out where in the wide, wide world of sports is that coming from.

And it’s coming from a reporter who we brought down here and we bring down here willingly, and you know, put up, who got it wrong. I said very clearly yesterday I want draft writs so I have options as I figure out what to do, and I hadn’t made a decision yet. I don’t know if I could have been more clear. So I’ll say it again, I said yesterday I haven’t decided yet to issue any writs. If they’re issued, they’re not being brought to GTMO. Anybody paying attention to this process knows that, right?

Transcript at 11924-11925.

Update (Feb 14, 2018 @ ~1230 eastern): The original title of this post was based on my read of Carol Rosenberg’s reporting (quoted below). But, after reviewing the unofficial transcript of yesterday’s proceedings in the al Nashiri case (available here), I get the impression that Colonel Spath wants the civilian attorneys brought to testify remotely, by video teleconference (VTC), from the Mark Center in Alexandria, VA, and not brought to Guantanamo. Colonel Spath stated:

The witness [the civilian defense counsel] clearly refused, through counsel, because I saw the e-mail. And the Attorney Fox said they’re not showing. And I assume he can speak for them since he’s their attorney. And so I can’t see a valid excuse. Again, the e-mail that I was shown said I lack jurisdiction; I don’t. And that the — having to appear at the Mark Center by VTC for DoD civilians employed in D.C. would be oppressive, with no evidence to the contrary.

Transcript at 11909-11910. There are significant optics (if not legal) differences between a warrant of attachment to appear in Virginia and one to appear in Guantanamo.

Original post:

Air Force Colonel Vance Spath – the chief judge of the Air Force and a judge on the military commissions (and the person who held General Baker in contempt) – apparently wants federal authorities to use force to bring two DoD civilian attorneys to Guantanamo.

Carol Rosenberg of the Miami Herald reports here that:

The judge in the USS Cole terrorism case ordered prosecutors Tuesday to draft warrants instructing U.S. Marshals to seize two civilian defense attorneys who have quit the case and ignored his orders and a subpoena to appear at the war court.

Air Force Col. Vance Spath, the judge, said he would sign the “writs of attachment” on Wednesday and cautioned from the bench that the lawyer for Pentagon-paid attorneys Rosa Eliades and Mary Spears should hustle to federal court, if the lawyer wants to stop what are essentially arrest warrants.

A warrant of attachment (see R.M.C. 703(e)(2)(G)(i); R.C.M. 703(e)(2)(G)(i)) is a “legal order addressed to an official directing that official to have the person named in the order brought before a court.” R.M.C. 703(e)(2)(G)(i) (discussion). The Manual for Courts-Martial provides the following discussion:

Subpoenas issued under R.C.M. 703 are federal process and a person not subject to the code may be prosecuted in a federal civilian court under Article 47 for failure to comply with a subpoena issued in compliance with this rule and formally served.

Failing to comply with such a subpoena is a felony offense, and may result in a fine or imprisonment, or both, at the discretion of the district court. The different purposes of the warrant of attachment and criminal complaint under Article 47 should be borne in mind. The warrant of attachment, available without the intervention of civilian judicial proceedings, has as its purpose the obtaining of the witness’s presence, testimony, or documents. The criminal complaint, prosecuted through the civilian federal courts, has as its purpose punishment for failing to comply with process issued by military authority. It serves to vindicate the military interest in obtaining compliance with its lawful process.

R.C.M. 703(e)(2)(G)(i) (discussion).

Carol Rosenberg also reports that:

The judge had earlier Tuesday expressed a reluctance to have the women seized. He said in court that their arrests could cause them to lose their security clearances and jobs with the Department of Defense and thwart his goal of having them return to the defense team of Abd al Rahim al Nashiri.

That’s a pretty unrealistic goal, particularly since Rule for Military Commissions 502(d)(3)(C) states that civilian defense counsel in a military commission must:

[have] not been the subject of any sanction of [sic] disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct

Such sanction or disciplinary action seems to be inevitable (if it hasn’t actually happened already). This is – by the way – a unique rule for the Guantanamo commissions; there is no similar limitation on civilian defense counsel in courts-martial.

But even if al-Nashiri’s former civilian defense counsel aren’t disqualified by rule, there’s the fact that now facing a real threat of arrest and involuntary relocation to Guantanamo, they almost certainly have a conflict of interest with the accused.

And we know what that arrest will look like, because it’s happened before. The last person subject to a warrant of attachment from a military commission was demobilized Navy Reserve Lieutenant Commander Stephen Gill – a judge advocate – who (also according to Carol Rosenberg’s reporting):

was picked up at his home, apparently in Massachusetts, on [Tuesday, October 18, 2016] “at gunpoint,” he estimated by 20 officers, put in three-point restraints and held overnight at an Alexandria County, Virginia, detention facility.

In a press release dated yesterday and available here, the Office of Military Commissions Convening Authority announced that the finding of contempt against Marine Corps Brigadier General John Baker by Air Force Military Judge Colonel Vance Spath – a finding that I analyzed in this post and concluded exceeded Spath’s statutory authority – is correct in law and fact.

The convening authority (Harvey Rishikof) disapproved the punishment of confinement for 21 days and a $1,000 fine. BGen Baker served three of those days of confinement in his quarters at Guantanamo before the remainder was deferred.

The convening authority also announced his intent to refer the matter for an ethics review.

The full text of the release is after the jump.

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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.