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.”

We previously discussed language in the Senate version of the DOD Authorization Act that would make CAAF the principal appellate review authority for military commission cases.  Last Thursday, the House Armed Services Committee held a hearing on the military commission system at which the Judge Advocates General of the Navy, Air Force, and Army and the Staff Judge Advocate to the Commandant of the Marine Corps testified.  In both their written statements and oral testimony, the Judge Advocates General of the Army and Air Force opposed authorizing CAAF to hear appeals of commission cases.  Both would provide more robust review by the Court of Military Commissions Review by requiring that court to review commission cases for factual sufficiency and sentence appropriateness, as well as legal errors.

Under current law, military commission cases first go on appeal to the Court of Military Commissions Review (which consists of a mix of CCA judges and civilians with its own support staff and reviews cases only “with respect to . . . matter[s] of law”), followed by a further appeal as of right to the United States Court of Appeals for the District of Columbia Circuit applying a narrow scope of review, see 10 U.S.C. § 950g(c), followed by discretionary SCOTUS cert jurisdiction.

Lieutenant General Black’s written statement provided the most in-depth discussion of the issue.  His statement said:

I disagree with the Senate’s proposal to establish the Court of Appeals for the Armed Forces as an intermediate court of appeals for those convicted by military commission.  I favor, instead, the Administration proposal to modify the responsibility and authority of the Court of Military Commission Review by infusing that court with the same responsibility and authority of our service Courts of Criminal Appeals under Article 66 of the Uniform Code of Military Justice (UCMJ).

The nature of this armed conflict does not require departure from the uniformity principle addressed by the Supreme Court in Hamdan, as applied to appellate review, but, rather, warrants adoption of an appellate system that more closely resembles that mandated by the UCMJ.  The only departure from that system warranted by the history of military commissions and present circumstances is designation of a Federal Court of Appeals and the Supreme Court for ultimate civilian appellate review.

I caution against encumbering the Court of Appeals for the Armed Forces (CAAF) with a separate set of responsibilities in relation to review of military commissions in addition to those it has in relation to courts-martial, namely the need to review convictions for factual as well as legal sufficiency.  CAAF’s role and responsibility under the UCMJ is well-defined.  It should not be confused with additional and significantly different duties when such are unnecessary for the proper review of commissions.  It is better to rely on an intermediate court comprised of military judges already familiar with such review to serve as an additional check upon unreliable results at commission before resort to a traditional legal review in higher appellate courts.

That seems like a strange rationale.  Factual sufficiency review and sentence appropriateness review aren’t rocket science; I’m pretty sure CAAF can figure it out.  Heck, one of the CAAF judges (Judge Stucky) used to be a CCA judge. And CAAF judges routinely police the CCAs’ application of the standards of review for factual sufficiency and sentence appropriateness — and sometimes have to correct the CCAs’ articulation of those standards of review.  See, e.g.,  United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005). 

Nor is concern about “encumbering” CAAF particularly compelling when CAAF is on pace to issue only 46 opinions of the court this term.  Granted, CAAF has to review a large number of petitions and other filings, but the court certainly hasn’t even approached its maximum sustainable operational tempo.

But what seems strangest is the argument that CAAF should be shielded from the commission system (or perhaps the commission system shielded from CAAF) based on “the uniformity principle addressed by the Supreme Court in Hamdan.”  After Hamdan, Congress repealed that “uniformity principle.”  When SCOTUS decided Hamdan v. Rumsfeld, 548 U.S. 557 (2008), Article 36(b) of the UCMJ stated:  “All rules and regulations made under this article shall be uniform insofar as practicable.”  In Hamdan, SCOTUS used this language to hold, as a statutory matter, that the military commission system was invalid because it departed from the court-martial system without any showing that it would be impracticable for commissions to follow court-martial procedures.  The Court held that Article 36(b) “demands that the rules applied in courts-martial, provost courts, and military commissions–whether or not they conform with the Federal Rules of Evidence–be ‘uniform insofar as practicable.’ § 836(b) (emphasis added). Under the latter provision, then, the rules set forth in the Manual for Courts-Martial must apply to military commissions unless impracticable.”  Id. at 622.

In the wake of Hamdan, Congress amended Article 36(b) to repudiate any “uniformity principle” tethering the military commission system to court-martial procedures.  Article 36(b) now reads, “All rules and regulations made under this article shall be uniform insofar as practicable, except insofar as applicable to military commissions established under chapter 47A of this title.”  So relying on “the uniformity principle addressed by the Supreme Court in Hamdan” is like trying to attack a court-martial conviction based on O’Callahan v. Parker‘s service connection requirement; the effort is doomed to failure because the foundation just isn’t there anymore.  Perhaps, if we must have a separate military commissions system, making it as similar to the court-martial system as possible is a good idea; I certainly think so.  But the reason for favoring such parallelism can’t be the uniformity principle addressed by the Supreme Court in Hamdan because Hamdan was a statutory construction opinion and the statute it construed has been changed precisely to prevent courts from applying a uniformity principle. 

But let’s assume that for reasons independent of Hamdan or the old Article 36(b), making the military commission system closely resemble the court-martial system is desirable as a policy matter.  Which is more like the court-martial system – providing for an appeal to the Court of Appeals for the Armed Forces followed by discretionary Supreme Court review or providing for an appeal to a military-commission-system-specific court followed by an appeal to the D.C. Circuit followed by discretionary Supreme Court review?  The former is far more closely aligned with the current military justice system than is the second — in which presumably D.C. Circuit precedent rather than CAAF precedent will be controlling.

Are there additional unstated reasons why two of the Judge Advocates General testified in opposition to placing the military commission system under CAAF?  Are there relevant differences in existing D.C. Circuit and CAAF case law or, alternatively, in expectations concerning how CAAF’s review of the military commission system might differ from the D.C. Circuit’s?

NIMJ has compiled an outstanding resource:  Military Commission Reporter, Volume 1.  NIMJ makes the publication — which includes almost 500 pages of text — available for free here.  Hard copies are available for $40.

In the words of the volume’s introduction, “The Military Commission Reporter includes every publicly available decision, order, and ruling issued by the military commissions conducted at the U.S. Naval Base, Guantánamo Bay, Cuba, and all known substantive opinions and rulings of the United States Court of Military Commission Review from October 2006 through June 1, 2009.”  It includes the Court of Military Commission Review’s rulings in both the Khadr and Jawad cases.

BZ to NIMJ for such a fine product.

Senate Bill 1390 (available here), the Senate’s version of the National Defense Authorization Act for Fiscal Year 2010, includes revisions of the Military Commissions Act to make the military commissions system more closely resemble the court-martial system. See id. at § 1031. The bill would amend the Military Commissions Act of 2006 to establish CAAF as the primary appellate review authority for the military commissions system. The bill kills off the Court of Military Commission Review, which currently consists of a mix of CCA and civilian judges, and removes the commission system from the D.C. Circuit’s jurisdiction. Instead, the bill gives CAAF jurisdiction to review every commission conviction for legal error, factual sufficiency, and sentence appropriateness. The Supreme Court could then review CAAF’s decision by writ of certiorari. Under the bill, 10 U.S.C. § 950c would provide that unless the accused waives appellate review, “in each case in which the final decision of a military commission under this chapter (as approved by the convening authority) includes a finding of guilty, the convening authority shall refer the case to the United States Court of Appeals for the Armed Forces.”

10 U.S.C. § 950f would provide:

(a) Review by United States Court of Appeals for the Armed Forces- (1) Subject to the provisions of this subsection, the United States Court of Appeals for the Armed Forces shall have exclusive jurisdiction to determine the final validity of any judgment rendered by a military commission under this chapter.

(2) In any case referred to it pursuant to section 950c(a) of this title, the United States Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

(3) If the United States Court of Appeals for the Armed Forces sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

(b) Review by Supreme Court- The Supreme Court of the United States may review by writ of certiorari pursuant to section 1257 of title 28 the final judgment of the United States Court of Appeals for the Armed Forces in a determination under subsection (a).

Or we could call it, “The Young and the Soon to be Jobless.” What ever you call it, as reported by the Toronto Star here, LCDR Bill Kuebler was reinstated late yesterday as counsel in the Omar Khadr commission case. According to the report, Army Col. Patrick Parrish ruled that only the military judge in a commissions case may authorize removal of counsel, without reaching the merits of Chief Gitmo Defense Counsel (Air Force) Col. Peter Maciola’s decision. For even more on this soap opera see the Ottawa Citizen report here and Canadian National Post Story here.

Masciola is quoted as saying he will appeal the decision, though my brief review of Commission rules says that Col. Parrish is right and only if an express conflict with the counsel’s state bar licensing rules exist can the Commission CDC remove a defense counsel. See Rule 109(b)(3)(C). Otherwise, it appears Rules 109(b)(2) and 502(f) give the power to remove counsel from a case to the military judge. But that was based on a word search review so don’t count that as authoritative.

This post is not about an abstract topic, but rather a link to an actual story of a Navy LCDR that was involuntarily reassigned from his job as a defense counsel in a military commission case. See NY Times article here. While we don’t usually cover commissions, the involuntary termination of a defense counsel that had formed an attorney client relationship, without consulting the client, raises enough MilJus issues that the action merits coverage. According to the NYT,

[LCDR] William C. Kuebler, who was appointed by the Pentagon to represent Omar Khadr, was reassigned on Friday after an internal inquiry into his conduct, said Michael Berrigan, the deputy chief defense counsel at the Navy base in Guantanamo.

According to other reports,

[Commissions' Chief Defense Counsel Col. Peter Masciola,] ordered Kuebler’s removal Friday in order to pursue “client-centred representation,” according to a statement from his office. . . . “The team representing Omar Khadr had become dysfunctional,” Masciola said. He said he could not elaborate because of privacy concerns and attorney-client privilege. A source who asked not to be named said yesterday Masciola had concluded that Kuebler was “a divisive figure on the military team and failed to act in best interests of Khadr.”

See Edmonton Sun report here. According to the story, “Kuebler insisted his reassignment was sparked by his criticism that [Col.] Masciola was too cosy with prosecutors.” If anyone has any more information on the events or the rationale for the firing, please let us know in comments or via email.

BTW: (1) h/t to Anon for the story; and (2) for those military DCs out there that previously felt squeamish about going to the press about your case (though some deny there are any of you, see our discussion here), what say you about this move? Is this the exception that proves the rule that you can go to the press about your case or the case study that makes TDC reluctant to go to the press?

Here is a link to breaking news from the WaPo that Army Colonel James Pohl has denied the Obama Administration’s request to delay the military commission hearing in the case of Abd al-Rahim al-Nashiri, a Saudi citizen of Yemeni descent. Al-Nashiri is accused of, according to the Post, “planning the October 2000 attack on the USS Cole warship, an al-Qaeda strike that killed 17 service members and injured 50 others.”

The article says Judge Pohl found the government’s arguments for postponing the arraignment “unpersuasive.” Leaving aside how an offense committed in 2000 can be tried in front of a military wartime tribunal, and all the other issues that will set off a $*%# storm in our Comments section, this was a brave move by Judge Pohl, so it warrants mention here.

Update: Apparently the defense did not object to the continuance, though Nashiri’s defense counsel, according to the WaPo, here, asked that discovery continue. WaPo added this quote from the military judge on his ruling, “The Commission is unaware of how conducting an arraignment would preclude any option by the administration . . . Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future.”

The WAPo gave us this quote, that falls into the understatement of the year (it’s early) category, “‘It’s somewhat of a shock,” said Navy Cmdr. Stephen C. Reyes, Nashiri’s military defense attorney.”

Arraignment means jeopardy attaches, so the convening authority may, understandably, now be considering withdrawal and dismissal of charges or other options.

According to multiple wire service reports, the President, through SecDef Robert Gates, has ordered the prosecutors in two military commission cases underway at Guantanamo to request 120-day continuances so that the new administration can “review the military commissions process, generally, and the cases currently pending before military commissions, specifically.”

It is not known whether the defendants will agree to such requests, and the military judges may decline to grant them.

UPDATE: Per NPR, the prosecution motion has been granted, apparently as to the trials underway and all pending trials.