Tag: Military Commissions

The review court for military commission trials issued an en banc opinion yesterday upholding the conviction of Osama bin Laden's driver, Salim Hamdan.

In justifying trial by military commission, it reached back to 1818.

In that case, U.S. forces under Gen. Andrew Jackson invaded Spanish Florida in 1818 to stop black slaves from fleeing through a porous border. Troops captured two British traders, whom the general ordered face a military commission on charges they aided the enemy by helping the Seminoles and escaped black slaves.

The tribunal convicted the men and sentenced them to a whipping. Jackson, a slave owner, declared the punishment too soft and had them executed.

The opinion is here.

Here are Attorney General Eric Holder's remarks today explaining the Administration's decision to try Khalid Sheikh Mohammed and the other 9/11 detainees before a military tribunal rather than in a federal criminal court.

[W]e must face a simple truth: those restrictions are unlikely to be repealed in the immediate future.

Holder said the five detainees, Khalid Sheikh Mohammed, Walid Muhammad Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsaw, were indicted in the Southern District of New York in December, 2009, but he has now instructed prosecutors to dismiss the sealed indictment and turned the cases over to the Department of Defense. Today, a federal judge in New York granted the motion and unsealed the Indictment. [More...]

Attorney General Eric Holder will announce at 2:00 pm today that Khalid Sheikh Mohammed and the other 9/11 detainees at Guantanamo will be tried by military commission instead of in federal criminal court.

Obama and Holder deserves there lumps over this, but the primary fault lies with Congress and officials in New York. [More...]

President Obama is about to lift the ban on military commission trials at Guantanamo.

One of those expected to be recharged and tried is Abd al Rahim al Nashiri, who was captured in 2002. Al-Nashiri was originally charged by the Bush Administration with participating in the 2000 bombing of the U.S.S. Cole. He was facing the death penalty. The Obama Administration moved to dismiss the charges against in in 2009. Al-Nashiri's co-defendants were moved to federal court. Why wasn't Al-Nashiri? The obvious answer is because the evidence against him was obtained by torture. His lawyer, Lt. Com. Stephen Reyes says:

“Nashiri is being prosecuted at the commissions because of the torture issue,” Mr. Reyes said. “Otherwise he would be indicted in New York along with his alleged co-conspirators.”

[More...]

There's a really unfortunate report in the Wall St. Journal saying the ink is almost dry on a deal to try the 9/11 suspects in military commission trials rather than federal criminal courts.

Under the deal, spurred by (of course) Lindsey Graham and Rahm Emanuel, and White House counsel Robert Bauer, 48 Guantanamo detainees would be held indefinitely without charges. And,

Mr. Graham wants civilian courts to be reserved for low-level Al Qaeda operatives and terrorist financiers, a far smaller group than previously considered.

White House and Democratic aides in the Senate said what they called an opening "proffer" from Sen. Graham won't be the final outcome. But the broad framework of a deal is done. "We're now at the 'getting serious' stage," said one senior Democratic Senate aide.

[More...]

The Washington Post reports President Obama's advisers are ready to kow-tow to Republicans and reverse course on the 9/11 defendants, recommending trials by military commissions instead of in federal criminal courts.

The recommendation follows Obama's advisers' negotiations with Republican Senator Lindsay Graham

Earlier we reported on President Obama's decision to move the Guantanamo detainees to Thomson Correctional Center in Illinois.

Also today, a senior administration official told the Chicago Tribune and others on a conference call the administration plans to conduct the military tribunals of the detainees at that facility.

So those going to Thomson will be those tried by military commissions -- and those who, like at Gitmo, are being held indefinitely without charges or trials. (The others will be released to their home or other countries.)

Is this any more than a change in zip code? The ACLU has more on Gitmo, Illinois.

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...]