Tag: Military commissions

President Obama signed the National Defense Authorization Act (NDAA)into law today. While it contains improvements to trial by military commission, the procedures are still flawed and should have been scrapped in favor of federal criminal trials. From the ACLU:

The NDAA makes improvements to the military commissions but fails to bring those tribunals in line with the U.S. Constitution and international law under the Geneva Conventions. It continues to apply the military commissions to a much broader group of individuals than should be tried before them under the Constitution and the Geneva Conventions and does not prohibit military commission trials of children. The new law does, however, for the first time require experienced capital defense attorneys in death penalty cases, authorize more resources for defense counsel, impose new limitations on the use of hearsay and coerced testimony and afford greater access to witnesses and evidence for defendants.

The ACLU firmly believes that the military commissions should be shut down for good as they remain a second class system of justice that cannot shed the shameful legacy of Guantánamo and all it stands for, rendering their results open to question.

The Center for Constitutional Rights issued an even stronger critique: [More...]

The judge presiding over the military commission proceedings of Khalid Sheikh Mohammed, Ramzi Binalshibh and three other detainees at Guantanmo issued a stay order today putting the cases on ice until November 16, so President Obama can decide whether he prefers to have the cases transferred to federal criminal courts.

The military had flown some family members of 9/11 victims in for the hearing. The defendants didn't appear in court which disappointed them -- and the prosecutor. The prosecutor asked they be brought from their cells but the judge refused. [More...]

Update: The DC Circuit has ordered the government to respond to the petition and emergency motion for stay of proceedings by this Tuesday, Sept 15, at noon.

Accused 9/11 terror participant Ramzi Bin al Shibh (aka Ramzi Binalshibh), one of the detainees facing a trial by military tribunal at Guantanamo, has filed a Petition for Writ of Mandamus in the D.C. Circuit Court of Appeals to stop the proceeding. He is represented by two JAG Corps attorneys in the Military Commissions' Office of the Chief Defense Counsel, CDR Suzanne Lachelier, USNR, and LCDR Richard Federico, USN. The John Adams Project, a collaborative effort of the ACLU and National Association of Criminal Defense Lawyers (NACDL) has been assisting. According to NACDL,:

The petition for extraordinary relief filed today asks the Court of Appeals for the D.C. Circuit to enjoin the prosecution of five high value detainees, consistent with President Barack Obama’s Executive Order of January 22, 2009. Defense attorneys are asking the court to assert jurisdiction over the commissions and compel a stop to all proceedings on the grounds that the commissions are unconstitutional and continue to operate without regard for the rule of law. The attorneys hope to shed light on the lawlessness of the military tribunal and force the Obama administration to formally charge the defendants in federal court.

[More...]

I've been reading the pleadings filed in the Military Commission trials of the "9/11 co-conspirators." Rulings on several of the motions are also available. Two that made a lot of sense to me are the Motion to Dismiss for Lack of Jurisdiction (Bill of Attainder) and Motion to Dismiss for Lack of Jurisdiction (Absence of Armed Conflict).

The motions and responses concerning Ramzi Binalshibh's competency are also interesting.

The two themes that run through the prosecution's pleadings are: (1) Trial by military commission does not entitle the accused to protections of the Bill of Rights, only to rights authorized by the Military Commissions Act, and (2) the length to which the DOD will go to prevent anything coming up as to what may have happened while the detainees were held and interrogated in CIA black sites overseas. [More...]

Update: Evidence in Terror Trials in Chaos: Military defense lawyers say the the re-referral of charges may have been an "accidental mistake." Several cases are in evidentiary chaos.

Teen soldier Omar Khadr, a true child of Jihad, has been set for trial by military commission at Guantanamo on January 26. That would give President Obama 7 days from his swearing in to abolish the unfair tribunals created by the the Bush Administration under the Military Commissions Act.

Unlike closing Guantanamo, which could take Obama months or a year -- even if he enters an executive order commanding the closure upon taking office -- stopping the military commissions trials can be done immediately.

Today, in an unexpected move, the official overseeing the military commission trials withdrew the charges against Khadr and the other four detainees facing trial by military tribunal and refiled them, which has the effect of voiding all proceedings that have taken place to date. In other words, the trial dates are off as they start from scratch. [More...]

Omar Khadr, the Canadian captured as a teen on the battlefield in Afghanistan, has a hearing today in his military commissions proceeding at Guantanamo.

Most human rights and legal experts say the evidence against Khadr seems too weak to be able to hold up in a US civil court or an ordinary military tribunal.

Khadr could then become the first beneficiary of the closing of the Guantanamo detention facility.

The ACLU is monitoring from Gitmo. [More...]

The U.S. today moved to dismiss the cases of five Guantanamo detainees facing criminal charges: Binyam Mohamed, Noor Uthman Muhammed, Sufyiam Barhoumi, Ghassan Abdullah al Sharbi and Jabran Said Bin al Qahtani.

Clive Stafford Smith, a civilian attorney representing one of the five, Binyam Mohamed, said he has already been notified that charges against his client will be reinstated. "Far from being a victory for Mr. Mohamed in his long-running struggle for justice, this is more of the same farce that is Guantanamo," Stafford Smith said. "The military has informed us that they plan to charge him again within a month, after the election."

Army Lt. Col. Bryan Broyles, who represents another of the five detainees, said the military might be preparing the tribunals to face increased scrutiny following next month's presidential election. John McCain and Barack Obama have both said they want to close Guantanamo Bay.

The Government's less than credible explanation: [More...]

The military jury in the trial of Guantanamo Detainee and Osama bin Laden driver Salim Hamdan reached a split verdit: Guilty of terrorism, not guilty of conspiracy.

Sentencing is expected to take place this afternoon. Life in prison is on the table. Hamdan cried as the verdict was read. His lawyers point out the inherent unfairness of the military tribunal trial process:

Hamdan's attorneys said the judge allowed evidence that would not have been admitted by any civilian or military U.S. court, and that interrogations at the center of the government's case were tainted by coercive tactics, including sleep deprivation and solitary confinement.

Unfair trials rob the public of the ability to trust in the integrity of the verdict. Guantanamo has been a failure and a black mark on America since day one. After the War in Iraq, this will be the biggest stain on the legacy of George W. Bush. Worst President Ever.[More...]

The military commissions trial of Salim Hamdan, driver for Osama bin Laden, went to the jury today.

Hamdan never testified in his defense across two weeks of trial testimony. But unlike suspects on U.S. soil... Hamdan had no right to an attorney or right against self-incrimination during 18 months of military and civilian interrogations from Afghanistan to Guantánamo.

In closing arguments:

[T]he Pentagon cast bin Laden's driver as an al Qaeda insider and the defense called him a Sept. 11 scapegoat. "He's an al Qaeda warrior. He has wounded, and the people he has worked with have wounded the world," prosecutor John Murphy told the jury. "You are the conscience of the community."

Countered Navy Lt. Cmdr. Brian Mizer, on behalf of the $200-a-month driver: "We will capture or kill Osama bin Laden some day. You should not punish the general's driver today with the crimes of the general."

By the numbers: There were only 10 media members in attendance on the last day of testimony. It took a Pentagon airlift to get most of them there at all.

The military commission trial of Osama bin Laden's driver, Salim Hamdan, got underway today.

The Judge barred the prosecution from introducing statements Hamdan made while detained at Bagram AFB in Afghanistan because they were the product of overly coercive techniques.

The judge said the prosecution cannot use a series of interrogations at the Bagram air base and Panshir, Afghanistan, because of the "highly coercive environments and conditions under which they were made."

At Bagram, the judge found Hamdan was kept in isolation 24 hours a day with his hands and feet restrained, and armed soldiers prompted him to talk by kneeing him in the back. His captors at Panshir repeatedly tied him up, put a bag over his head and knocked him the ground.

Other rulings: [More...]

Via McJoan at Daily Kos, I see that the Pentagon announced today that William J. Haynes, II has resigned as the chief counsel of the Department of Defense.

As we noted last week, Haynes is the guy who told Morris Davis, the former chief prosecutor at Guantanamo, that the Administration couldn't handle any acquittals in the military commission trials. Haynes was responsible for oversight of the tribunal process.

Haynes was also a Bush judicial nominee for the 4th Circuit Court of Appeals. He was widely opposed, in no small part for his hand in the Bush Adminsitration's much-criticized military interrogation policies. Democrats refused to confirm him. Here's more on his failed confirmation hearing.

One more: People for the American Way: Keep Haynes Off the Federal Bench. The Pentagon announcement says he's going back to private life. That's a relief.

What do we have here -- show trials just in time for the November elections, to help out the Republican nominee? (hat tip to reader Scribe.)

Military prosecutors will seek the death penalty for six detainees at Guantanamo.

Update: The ACLU says the system is flawed.

Via Sebastian Meyer: The U.S. reasoning for the 6 death penalty cases sought in Guantánamo is based on the Geneva Conventions, the very document the U.S. claims does not apply in this case.

Update: The Center for Constitutional Rights which represents one of the six designated for execution is challenging the validity of military comissions and use of torture evidence in death penalty cases.

Update: C-Span 3 is stream and playing the audio of the hearing now (11:44 am ET). The AP now has a report, Justices Grill Detainees' Lawyer, on how the arguments went.

The Supreme Court today is hearing oral arguments in the consolidated cases of Boumediene v. Bush and Al Odah v. U.S., 06-1196 regarding the rights of Guantanamo detainees to challenge the legality of their confinement in federal courts.

Lawyers for the foreign detainees contend the courts must step in to rein in the White House and Congress, which changed the law to keep the detainee cases out of U.S. courts after earlier Supreme Court rulings. The most recent legislation, last year's Military Commissions Act, strips federal courts of their ability to hear detainee cases.

Solicitor General Paul Clement, representing the administration, said foreigners captured and held outside the United States "have no constitutional rights to petition our courts for a writ of habeas corpus," a judicial determination of the legality of detention.

The Court may have to determine whether Guantanamo Bay in Cuba is really on U.S. soil. [More...]

I'll believe it if it happens, but according to the New York Times, Bush administration officials are discussing providing more legal rights to the Guantanamo detainees it seeks to hold as enemy combatants.

The discussions are described as a step on the road to closing Gitmo. Why the change of heart? The Administration may be fearful the next case the Supreme Court decides will be too generous to the detainees.

The administration has fought for years in court and in Congress against granting the detainees more rights. In the latest instance, the Supreme Court is to consider a case brought by Guantánamo detainees who are seeking to challenge their confinement in habeas corpus suits in federal court.

If the administration loses that case, it could give the detainees even more legal rights and create a precedent limiting the president’s and the military’s power. Lawyers inside and outside of government said a detailed proposal from the administration to give detainees fuller legal protections could convince the justices that they need not resolve the case, Boumediene v. Bush.

More...

The Center for Constitutional Rights has filed what it says is a "groundbreaking brief" (available here) on behalf of Guantanamo detainees.

On August 24, 2007, Center for Constitutional Rights (CCR) attorneys and co-counsel submitted a ground-breaking brief to the Supreme Court in the case that will determine whether detainees at Guantánamo possess the fundamental constitutional rights to due process and habeas corpus.

The brief was filed on behalf of men from the first habeas corpus petitions submitted immediately after the landmark 2004 Supreme Court decision in CCR's case Rasul v. Bush. Al Odah v. United States, as the case is now called, has been consolidated with a related case, Boumediene v. Bush; both challenge the Military Commissions Act (MCA), which attempted to strip away the statutory right to habeas corpus the Supreme Court recognized in 2004 and replace it with a far more limited review process set up by the Detainee Treatment Act (DTA).