In-Court Wardrobe, Personal Jurisdiction, and the 9/11 Case

Wells Bennett
Thursday, June 14, 2012, 10:51 AM
Not quite pret-a-porter?  Various media are reporting on the recently released motion by the 9/11 defendants, who desire to

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Not quite pret-a-porter?  Various media are reporting on the recently released motion by the 9/11 defendants, who desire to wear the clothing of their choice during commission proceedings.  In particular, KSM wishes to don a camouflage field jacket and matching turban.  Bin Attash also desires a camouflage jacket, along with a head scarf and shalwar kameez.   Hawsawi's preference is the "Guantanamo classic," an orange jumpsuit.  Some of the other defendants' requests have a more quotidian flavor.  Bin al Shibh, his lawyers said, had asked to wear a "tan colored kameez, a tan vest, a traditional Afghan hat and a scarf to be used to fashion a turban."  According to defense attorneys, JTF GTMO disallowed these sartorial choices before the May arraignment, in an action that exceeded the authority of camp officials.  Now the defendants have formally presented their complaints to the military commission.  (The parties batted around the clothing issue during arraignment, and Judge Pohl agreed to revisit any arbitrary prohibitions on prisoner clothing if necessary.)  I don’t want to wade too far into this, both because the defense’s reply is not yet publicly available, and because we're still a way's off from the motion's argument in August.  But in the meantime, recall that the commission's personal jurisdiction is limited to "alien unprivileged enemy belligerents."   The defense explicitly links that concept to the question of whether one or more of the accused can wear camouflage articles in the courtroom:

As a necessary antecedent to their proof, the Government must establish beyond a reasonable doubt that the Accused are not lawful combatants under the laws of war. Denying any accused before this war crimes court the opportunity to wear appropriate, and respectful uniform items that combatants or members of militia would customarily wear under the laws of armed conflict, such as a camouflage vest, field jacket, and turban directly supports the Government’s proof. JTF-Guantanamo, before the very start of the arraignment, inserted itself into the panel box by deciding – as the factfinder – that the Accused are not lawful combatants. Consequently, denying the Accused the clothing of his choice, and only permitting them to wear a shalwar and kameez or a western style suit impairs the presumption of innocence.

The government's response rejects any attempt by the defendants to suggest to the members, by means of the defendants' attire, that the defendants cannot be tried in a military tribunal:

Presumably, the defense intent in providing the accused with such items is to broadcast their message that the accused are in fact "lawful combatants under the laws of war." AE038, p. II. Neither the Manual for Military Commissions, nor any relevant case law empower the accused to make such extrajudicial statements to the jury with their clothing while seated at their defense table. If the defense desires to challenge the prosecution's evidence on the merits of the case, or if any accused has evidence to present regarding his status under the laws of war, he will be permitted to do so at the appropriate time in the trial. To allow the accused to wear camouflage vests and jackets or an orange prison jumpsuit during court, would threaten to transform this Commission into a vehicle for their own propaganda and undermine the "atmosphere that is conducive to calm and detached deliberation and determination of the issues presented and that reflects the seriousness of the proceedings," as required by R.M.C. 801 (a).


Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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