The Lawfare blog has posted audio of CMCR’s argument in al Bahlul here, as well as an analysis of the argument here.  A summary of the argument in Hamdan is available here and audio of the Hamdan argument is available here.

Yesterday the Court of Military Commission Review–which consists of dual hatted CCA judges–held two oral arguments — one in Hamdan and one in al Bahlul.  Here’s a link to NIMJ’s blog’s coverage of the arguments.

Here’s an order from CMCR directing the parties to file additional briefs and orally argue the case of United States v. al Bahlul on 17 March 2011 at the Federal Circuit’s courtroom.

The Court of Military Commission Review today issued two orders indicating that certain judges had recused themselves in two pending appeals, Hamdan and al Bahlul.  Acting CMCR Chief Judge O’Toole wrote a lengthy and scholarly memorandum in each case explaining why he recused himself.  We’ve posted the orders and accompanying memoranda here and here.  We previously discussed the appellants’ disqualification motions here, here, here, and here.  CMCR will now consider both Hamdan and al Bahlul en banc.

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.

Secretary of Defense Gates has assgined five additional CCA judges to be dual-hatted as Court of Military Commission Review judges.  Four of the five new CMCR  judges come from ACCA while the fifth comes from NMCCA.  Here they are:  COL David Conn (Army), COL Martin Sims (Army), COL John Hoffman (Army), COL Theresa Gallagher (Army), and Col Joseph R. Perlak (USMC).

We’ve been following the military commission system litigation over whether former Court of Criminal Appeals judges who have left the CCA bench remain eligible to serve as judges on the Court of Military Commission Review.  There are two new filings on that issue today.  Here’s a link to al Bahlul’s reply brief and here’s a link to Hamdan’s reply brief.

Here’s a link to an amicus brief that NIMJ has filed analyzing whether Chief Judge of the Navy O’Toole and Col Thompson remain authorized to sit on the Court of Military Commission Review now that they are no longer sitting on their respective services’ CCAs.  NIMJ’s argument that under Chevron, the Military Commission Act of 2009 should be construed consistently with the Department of Defense’s implementing regulation is particularly intriguing.

Here is the Government’s surprisingly terse response to the motion to disqualify Chief Judge O’Toole and Col Thompson as Court of Military Commission Review judges because they are no longer CCA judges.

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.

Yesterday we noted challenges that had been filed to the Court of Military Commission Review’s present organization.  One of those challenges, filed by counsel for al Bahlul in the Hamdan appeal, sought to remove Chief Judge of the Navy O’Toole as Judge Price’s reporting senior, since both sit on the Court of Military Commission Review.  The CMCR issued this ruling today clarifying that Chief Judge O’Toole isn’t Judge Price’s reporting senior.  The ruling explains that the Judge Advocate General of the Navy is the reporting senior of both Chief Judge O’Toole and Judge Price.  (Under the JAG Notice that the ruling cites, the Judge Advocate General of the Navy would also have been the reporting senior of the recently retired Judge Geiser of NMCCA and the CMCR.)

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.

The military commission system and the court-martial system are generally kept at arm’s length.  But one area where they intersect is the judiciary.  Sitting military judges have been presiding over military commission trials and sitting CCA judges have been serving on the Court of Military Commission Review.  Some interesting motions practice has arisen in connection with the latter.  While I generally avoid blogging about military commission matters for a variety of reasons, I note these recently filed motions due to their overlap with the functioning of the Courts of Criminal Appeals.

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.”

I generally resist the urge to comment on military commission matters, but in the wake of the No Man’s Khadr post, I’m going to fall off the wagon (hopefully just this one time).

According to Reuters, a military commission prosecutor challenged a member for cause (unsuccessfully) because “he agrees with the President”:

The rejected Army officer, a lieutenant colonel who had served in Europe and specialized in nuclear arms control, said “America seemed to lose its status as a beacon of freedom, liberty and justice” by conducting extrajudicial renditions, holding prisoners in secret locations and treating others inhumanely in Afghanistan and at Guantanamo.

“I don’t believe my position is any different from the president’s,” he said.

President Barack Obama has tried unsuccessfully to shut the Guantanamo detention camp and banned cruel, degrading or inhumane treatment.

Prosecutor Jeff Groharing, a former Marine major, said that Army officer showed “a decidedly hostile view of the government” and tried to have him dismissed as biased.

“He said repeatedly he agrees with the president!” Groharing exclaimed.

The judge refused to exclude the man but Groharing used the prosecution’s lone peremptory challenge to dismiss him without having to give a reason.

Jane Sutton, Keep or close Guantanamo? Military jurors weigh in, Reuters (Aug. 11, 2010).

This WaPo story summarizes the first day of hearing s in the Omar Khadr military commission hearing.  Khadr, a Canadian citizen, was 15 when he allegedly threw a grenade at US Special Forces in a firefight in Afghanistan.  The story’s last paragraph mentions that Army LTC Jon Jackson, Khadr’s defense counsel, passed out during today’s hearings and was taken to the base hospital.  Anyone know if LTC Jackson is OK?

UPDATE:  WaPo reports here that, “[LTC] Jackson responded to a medic’s immediate treatment within 30 seconds, and he was taken by ambulance to a base medical facility. There, doctors determined that he was suffering complications from gallbladder surgery he underwent six weeks ago.”  We wish our colleague a speedy recovery.

Here is a link to NIMJ blog coverage of the latest guilty plea in a militaruy commission case. The detainee, Ibrahim Al Qosi, pled guilty to providing logistical support to al Qaeda by acting as a cook, bodyguard and driver for Bin Laden. DoD’s press release, here, really doesn’t give much more detail on the nature of the charges. The linked charge sheet, here, I believe contains all of the charges against al Qosi not just the ones to which he pled guilty, but please correct me if I am wrong.

What we do know is that al Qosi won’t be getting credit for time served, like Salim Hamdan did, and walking out of Gitmo any time soon. The plea deal specifically waived the right to time served–though the new Commission Manual fixed that issue after Hamdan’s essentially time served sentence. The plea, according to the NIMJ Blog, also waives al Qosi’s right to appeal his “detention, trial or sentence, the right to challenge his conviction on collateral appeal, the right to file a habeas petition.”

The Judge Advoctes Association has taken this position on Section 1037 of House Bill 5136, which the No Man previously discussed here:

Section 1037 of H.R. 5136, National Defense Authorization Act for Fiscal Year 2011 charges the Inspector General of the Department of Defense with conducting an investigation of conduct and practices of lawyers, military and civilian, who are representing individuals the subject of either habeas corpus actions or military commissions.

The Judge Advocates Association opposes this legislation. The U.S. Department of Justice has initiated and is continuing to conduct an investigation into matters which are the subject of this proposed legislation. The Department of Justice is the agency with primary jurisdiction in these matters. The Judge Advocates Association believes it unwise to require another agency to conduct an investigation while the Department of Justice has an open criminal investigation.

Any concerns about ethical conduct of judge advocates are properly the responsibility of the appropriate military department Judge Advocate General or the Staff Judge Advocate to the Commandant of the Marine Corps.

[Disclosure:  while I'm a member of the JAA's board, I abstained from voting on this measure due to my previous duty as the military commission system's chief defense counsel.]

First, I have to correct something from my prior post, here.  In that post I said I agreed with Prof. Vladeck over at Balkinization, here.  In what I can only say was an oversight on my part, I missed this portion of Prof. Vladeck’s post:

I had hoped (perhaps naively) that the dust-up earlier this year over the “al Qaeda 7” (and the emphatic response thereto) had finally put to bed the repeated attacks on lawyers that have arisen since Cully Stimson’s spurious critique of the role of D.C. law firms in Guantánamo litigation in January 2007. But so long as Congress is seriously considering language like this, it seems that such lawyers will continue to have to defend themselves as much as they (and in order to) defend the rights of their clients.

The reason I mention this passage is the reference to Cully Stimson and the “al Qaeda 7″ in the same sentence without  mentioning that Mr. Stimson has (a) apologized for his comments about Gitmo lawyers in 2007, see here, and (b) called attacks on the “al Qaeda 7″ and even use of the term “shameful,” see CAAFLog coverage here.  I am not sure what Prof. V. meant by spurious, but I don;t think it encompasses Mr. Stimson’s later expressed beliefs.

Second, here is some new commentary for and against Sec. 1037 and its attempt to give the DoD IG investigatory responsibility over defense lawyers in Gitmo detainee cases:

• NIMJ here
• Rep. Jeff Miller, R-FL (the bill’s sponsor) here

[Disclosure: I am a member of the NIMJ Bd. of Advisors]