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.”

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.

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.

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

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.

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?

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.

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.

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.

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.

“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.

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

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.

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.

While, for a variety of reasons, I normally don’t blog about military commission matters, I note today’s orders and memoranda due to their overlap with the military justice system’s appellate system.

The Government argues, in part:

DoD Regulation for Trial by Military Commissions (RTMC) notwithstanding, the Military Commission Act of 2009, [Section] 949b(b)(4), 10 U.S.C. [Section] 949b(b)(4), provides that “[n]o appellate military judge” on Court of Military Commission Review (CMCR) may be reassigned absent one of four conditions which have not occurred here.  Thus Col Thompson and CAPT O’Toole are qualified to be judges on this Court.

The Government appears to misread Section 949b(b)(4).  Both Col Thompson and CAPT O’Toole have been reassigned.  If it wasn’t in compliance with the statute, then another problem exists.

That subsection provides:

(4) No appellate military judge on the United States Court of Military Commission Review may be reassigned to other duties, except under circumstances as follows:

(A) The appellate military judge voluntarily requests to be reassigned to other duties and the Secretary of Defense, or the designee of the Secretary, in consultation with the Judge Advocate General of the armed force of which the appellate military judge is a member, approves such reassignment.

(B) The appellate military judge retires or otherwise separates from the armed forces.

(C) The appellate military judge is reassigned to other duties by the Secretary of Defense, or the designee of the Secretary, in consultation with the Judge Advocate General of the armed force of which the appellate military judge is a member, based on military necessity and such reassignment is consistent with service rotation regulations (to the extent such regulations are applicable).

(D) The appellate military judge is withdrawn by the Secretary of Defense, or the designee of the Secretary, in consultation with the Judge Advocate General of the armed force of which the appellate military judge is a member, for good cause consistent with applicable procedures under chapter 47 of this title (the Uniform Code of Military Justice).

Col Thompson and CAPT O’Toole were both “appellate military judge[s] on the” CMCR.  Both have been reassigned to other duties.  If those reassignments weren’t in accordance with either 949b(b)(4)(A) or (C), then those reassignments were illegal.

The Government also fails to address Col Thompson’s current assignment as a staff judge advocate or consider the implications for simultaneously performing those duties and sitting on a case in which the United States is a party.

Still pending is Hamdan’s counsel’s challenge to Chief Judge O’Toole’s and Judge Thompson’s authority to sit on the CMCR now that neither is a CCA judge.

Col Thompson, USAF, used to be an AFCCA judge.  But she left that court at the end of June and now serves as a staff judge advocate.  She nevertheless remains on the Court of Military Commission Review.  The Regulation for Trial by Military Commission, which was promulgated by Deputy Secretary of Defense Gordon England in 2007, provides that the “CMCR will consist of judge advocates who are currently certified and detailed as appellate military judges to the services’ Courts of Criminal Appeals (CCAs), or civilians of comparable qualifications.”  RTMC, para. 25-2.c.  The Military Commissions Act of 2009 includes somewhat similar language.  10 U.S.C. § 950f(b)(2).  Counsel representing Salim Hamdan yesterday filed this motion challenging Col Thompson’s eligibility to remain on the Court of Military Commission Review now that she’s no longer a CCA judge.

The motion also challenges Chief Judge of the Navy O’Toole’s authority to remain on the CMCR.  The motion observes that while Navy regulations authorize Chief Judge O’Toole to sit as a trial judge, he isn’t authorized to sit as an NMCCA judge.  Indeed, he’s statutorily ineligible to sit as an NMCCA judge since he’s the reporting senior for NMCCA judges.  See Art. 66(g), UCMJ. 

Also yesterday, the CMCR’s Clerk of Court directed the government to respond to the motion within five days.

Today, counsel for al Bahlul filed this motion to intervene in the Hamdan appeal to raise another challenge to the CMCR judges.  In this separate motion, counsel for al Bahlul ask Chief Judge O’Toole to remove himself as the reporting senior for Judge Price, who sits on both NMCCA and the CMCR, but who has recused himself from the Hamdan appeal.  The motion argues that Congress meant to create the same safeguards for judicial independence of  CMCR judges as exist for CCA judges, and that “[c]hief among those safeguards is the broad language of Article 66(g), which makes any effort by one appellate military judge to influence the professional evaluation of another appellate military judge unlawful influence per se.”