Here’s a link to audio of Tuesday’s oral argument before the Court of Military Commission Review in United States v. Hamdan.  (We previously posted a link to audio of Tuesday’s al Bahlul argument here.)

Today’s oral argument in Blazier, No. 09-0441/AF, concerning application of Melendez-Diaz to military drug testing lab reports, was exceptionally fascinating.  Audio is available here.  Audio in Huntzinger, No. 09-0589/AR, concerning whether servicemembers have any reasonable expectation of privacy at a Forward Operating Base, is available here.

Audio of today’s NMCCA oral argument in Saxman is available here. 

Finally, the Court of Military Commission Review heard oral argument today in two cases arising from military commission convictions:  United States v. Hamdan and United States v. al Bahlul.  Audio of the al Bahlul oral argument is available here.

As everyone surely knows, President Obama signed the FY2010 National Defense Authorization Act on Wednesday.  The Act contained provisions “upgrading,” my word, the Military Commissions Act of 2006, and thus does not utilize the UCMJ–it also does not utilize the military appellate courts as many of us had argued would be prudent, see link to Gene Fidell’s argument here.  The Act does not put suspects on par with courts-martial in all respects, but it is an improvement. 

The MCA amendments can be found here at Sections 1801-07.  When GPO prints Public Law No. 111-84 we will give you the new link.  Here is my least favorite provision.  

‘‘§ 948d. Jurisdiction of military commissions

‘‘A military commission under this chapter shall have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter, sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of Military Justice), or the law of war, whether such offense was committed before, on, or after September 11, 2001, and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized under this chapter. A military commission is a competent tribunal to make a finding sufficient for jurisdiction.

I just don’t understand how, with all the rhetoric of the campaign, the provision permitting trial by military commission for offenses committed “before or on” Septemeber 11, 2001 remains.  I won’t belabor the point.  See my rant here.

Also, an interesing Q&A from NPR, here, with Charlie Swift’s take on the amnedments.  Here is an excerpt:

On the legitimacy of military commissions:

A military judge recently remarked to me that as long as the process and rules of evidence [for military commissions] are inferior to federal courts, and cases are sent to commissions because of that perceived deficiency in evidence, the commissions will never be seen as legitimate.

If, instead of evidence or a perception of danger posed by the detainee, one bases the decision [on] what is the legally appropriate forum [to try detainees], the Law of War actually addresses the question.

Article 64 of the Fourth Geneva Convention dealing with occupations requires all persons detained by the occupying power to be tried by a non-political military tribunal sitting in the occupied territory.

So for the detainee that allegedly took part [in or] supported acts of sabotage and terrorism in Afghanistan, those persons should be tried exclusively in a military tribunal.

The problem with the commissions at the moment is that Congress politicized them by passing the 2006 Military Commissions Act after the Hamdan decision, rather than following the Supreme Court’s holding that the commission’s rules must comply with the longstanding Uniform Code of Military Justice, which is decidedly not a political court.

Gene Fidell writes here on Balkinization about the conference committee version of the DOD Authorization Act rejecting a move to establish CAAF as the direct review authority for military commission convictions.  Gene notes ways in which unlawful enemy alien combatants convicted by military commission will continue to enjoy greater rights than U.S. servicemembers receive, such as having a right to appeal regardless of the severity of the sentence and having a guaranteed path to filing a cert petition.

We had previously discussed a provision in the Senate version of the National Defnse Authorization Act for FY 2010 that would have given CAAF direct appeal jurisdiction over military commission cases.  That provision, however, isn’t in the conference committee’s version of the bill, which is available here.  The first level of appellate review remains with the Court of Military Commission Review, which is comprised of a mix of CCA and civilian judges.  The second level of appellate review remains with the D.C. Circuit, with discretionary review by the Supremes.

As we reported last week, the military defense counsel representing accused terrorist Ramzi bin al Shibh recently filed a petition for a writ of mandamus broadly attacking the constitutionality of military commissions in general and rulings by the military judge and convening authority in their client’s case in particular. In response, the government alleged that the circuit court lacks jurisdiction to hear interlocutory appeals in MCA cases, and defended the actions complained of by the defense.

The government also informed the appellate court that it planned to seek a sixty-day continuance of the competency hearing that had been scheduled to begin this week.  The military judge, Army Colonel Stephen Henley, has granted the continuance.  A copy of his order appears here:  [PDF].

The government’s reply to the writ petition filed by two Navy JAGs in the bin al Shibh case (discussed here) is now online.

The government argues broadly that, inter alia, the court lacks jurisdiction to entertain interlocutory matters in MCA cases.  Not surprisingly, the government also disputes some of the factual assertions made by the defense. The competency issue at first glance appears to be one of those disputed; but on closer examination, the government does not appear to challenge the defense’s assertion that bin al Shibh may not be competent to “conduct or cooperate intelligently in his own defense.” The government has agreed to continue bin al Shibh’s competency hearing for sixty days.

The government brief can be found here: [PDF].

SCOTUSblog brings us news of action on a writ petition filed by CDR Suzanne Lachelier and LCDR Richard Federico on behalf of their client, Ramzi bin al Shibh.  The government has been ordered to file a response; the timetable set up by the appeals court suggests that the petition will be heard very soon.

In fairly harsh language, the petition asserts that cases brought under the Military Commissions Act of 2006 “were never intended to do justice. Instead, what the government has sought, and to date received, is not a legitimate judicial proceeding but a political show trial.” 

The petition focuses in large part on the government’s handling of mental health issues that purportedly call into question bin al Shibh’s fitness to stand trial. According to the petition, the accused was diagnosed by a sanity board comprised of military psychiatrists as suffering from a delusional disorder that “has the potential to impair his ability to conduct or cooperate intelligently in his defense.” The Convening Authority, the petition states, repeatedly denied defense requests for an expert; when the military judge finally ordered a defense psychologist be appointed, it was with the proviso that the psychologist not be permitted to meet with bin al Shibh or testify at the competency hearing. 

Petitioner’s counsel allege that it is “inconceivable that American citizens accused of capital or other serious crimes” would be treated in the same manner.  For this reason among others, they argue, the MCA violates the Due Process Clause’s principle of equal protection, both as written and as applied in bin al Shibh’s case.  They ask that all proceedings before the military commissions be halted.  The full petition can be found online here: [PDF].

In a one-page order issued Friday, the Court of Appeals for the D.C Circuit ordered the government to respond to the petition by noon Tuesday, September 15, 2009. Bin al Shibh’s reply brief is due forty-eight hours later.

We previously discussed NIMJ’s Military Commission Reporter, which is an indispensable asset to both practitioners in the military commission system and those who study it.  NIMJ has now released the first e-pamphlet in Volume 2 of the Reporter, available here.

The 7 July Senate Armed Services Committee hearing on the military commissions system included some interesting exchanges about who should hear commission appeals.  Interestingly, DOD General Counsel Jeh Johnson distanced himself from the proposition that a uniformity principle arising from Hamdan (which I criticize in the post below) provides a basis for excluding CAAF from hearing commissions appeals.

Senator Lieberman asked Mr. Johnson, “In light of the judgment of the Supreme Court in the Hamdan case, that certainly to me suggested approval of the Court of Appeals for Armed Forces as the place that the accused here can appeal from a judgment of the military commission, and the Court of Appeals for Armed Forces is not a standard Article III federal court, as you well know.  Why is the administration seeking a right of appeal from the military commissions to Article III federal courts?”

DOD General Counsel Johnson replied, “Our view is that we should retain the Court of Military Commissions Review and then have appeal directly to the D.C. Circuit. That would be, in effect, a four-tiered level of review, beginning with the trial court, and, in our view, would resemble in many respects UCMJ justice, because you have that intermediate level of appellate court rather than an appeal directly from the military commission’s trial-level court to the CAAF. So it would be our preference to have an appeal direct to the D.C. Circuit. But we agree with the concept of the expanded scope of review.”

Senator Lieberman followed up by asking whether this was a departure from Hamdan’s uniformity principle:  “Is it fair to say, then, that the Administration’s suggested changes in this regard are not rooted in the Supreme Court’s uniformity principles as stated in Hamdan? But they’re rooted in some other requirement, or some sense of the administration about what’s fair and just here?”  Mr. Johnson replied, “I think that’s a fair statement, Senator.”

Senator Lieberman later endorsed routing commission appeals through CAAF:  “I think the committee has made the right judgment in saying that the right of appeal from the military commissions should be to the U.S. Court of Appeals for the Armed Forces, and that there shouldn’t be an appeal to the circuit court of the D.C. District.”

Under questioning from Senator Martinez, Vice Admiral MacDonald made a point that I make in the post below:  while VADM MacDonald expressed a preference for the MCA’s appellate review structure, he testified that CAAF would be perfectly capable of exercising factual sufficiency power if asked to do so:  “[W]hat we’re saying is that if you want to, to the extent that you can, stay faithful to the UCMJ, that one way to approach it on appeal would be to allow the Court of Military Commissions Review, either military judges that currently sit on that court now, or a combination of military and civilian judges, that they would have factual and legal sufficiency review powers. And then after that, you can either go into the federal system, to the D.C. Circuit, as it’s constituted today, or you could go to CAAF and mirror the UCMJ system.  Either of those paths would lead you ultimately to the Supreme Court. Now, can CAAF do legal, or factual, sufficiency? Yes, Senator, they can. They are very skilled jurists. If the committee — if the bill contains and continues to contain an appeal to the CAAF, and that body is given both factual and legal sufficiency review, CAAF can do that.  So I think I would prefer the current system, because our military judges are used to doing factual and legal sufficiency. But if you choose to go the CAAF route, the CAAF judges are capable of doing it.”

At the same hearing, retired Army Major General Altenburg raised what he termed a “quibble” about making CAAF the principal appellate review authority for the commission system and giving that court factual sufficiency power.  He testified, “I believe because the service courts have the experience of the fact-finding role, the experience and the expertise honed over years and years, that a more appropriate place for the intermediate appeal would be the existing Court of Military Commissions Review and not the CAAF.  The CAAF, I’m sure, as an earlier speaker mentioned, certainly has the expertise to do the fact-finding role. I just think it’s better placed with the military appellate judges because of their experience in that regard. And I think it would be somewhat onerous to place that on the CAAF. Their experience is with criminal law for the most part, military criminal law, is very similar to domestic criminal law, and we’re now into an area of law of war, and some things fairly arcane in dealing with these types of crimes.”