Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

Last Week at the Military Commissions

Jordan Brunner, Chris Mirasola
Tuesday, May 23, 2017, 3:40 PM

The Military Commissions were busy last week in the case against Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi, and Mustafa Ahmad al Hawsawi. In summarizing what happened, we’re experimenting with a new format. Below is a rundown of the substantive issues addressed in last week’s open sessions (Monday, Tuesday, and Friday). Hearings on Wednesday and Thursday involved classified material, and were therefore closed.

Procedural Housekeeping

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The Military Commissions were busy last week in the case against Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi, and Mustafa Ahmad al Hawsawi. In summarizing what happened, we’re experimenting with a new format. Below is a rundown of the substantive issues addressed in last week’s open sessions (Monday, Tuesday, and Friday). Hearings on Wednesday and Thursday involved classified material, and were therefore closed.

Procedural Housekeeping

A number of administrative matters occupied the court’s time this week. On Monday Judge James Pohl explored a number of concerns trial counsel expressed regarding the process “for partially non joining, for want of a better term.” Mr. Clayton Trivett, representing trial counsel, argued for a return to rules existing before revisions were made to rule 3.5.1 on March 1, 2017. Judge Pohl promised to look into the matter. Also on Monday, Mr. Bin’Attash reasserted his desire, first lodged January 13, 2015, to have motion 380 unsealed notwithstanding implications unsealing would have on the attorney-client relationship.

On Friday, Mr. David Nevin told Judge Pohl that the Convening Authority told the Chief Defense Counsel that civilian members of Mohammad’s defense team would henceforth not be permitted on OMC flights. This change in practice from the prior nine years was based on a new statutory interpretation. Judge Pohl asked for the opinion to be submitted in writing before addressing the significant logistical issues that decision would create.

Also on Friday, Mr. Jim Harrington asked Judge Pohl to appoint a monitor to be a point of contact for Binalshibh’s complaints. He noted that the current cycle of complaint, lack of response, aggravated action, and discipline was unproductive for all concerned. Judge Pohl promised to think about a solution, though he was skeptical that an better alternative arrangement could be found.

Mr. Walter Ruiz later addressed motion 442, originally filed August 2016, requesting additional accommodation for Hawsawi. Ruiz argued that, because of medical issues resulting from Hawsawi’s torture, it is necessary to install video and audio feed into Camp 7, as well as teleconferencing capabilities, and provide alternate transport to the courtroom. Judge Pohl took exception to the suggestion that Hawsawi’s waivers not to attend hearings may not be entirely voluntary, given the degree of his physical pain, and instructed defense counsel to inform him if they discover any evidence to that effect in the future. Ruiz agreed to do so, and further argued that, unlike Turner v Safley, it would not be beyond the court’s jurisdiction to order such accommodations. Major Christopher Dykstra, for Trial Counsel, argued that Hawsawi’s physical condition had improved such that accommodation was no longer necessary. Ruiz responded with countervailing medical testimony and personal experience.

Rounding out the week, Judge Pohl decided to schedule argument on the unclassified sections of motion 444 for the next commission session and assured Mr. James Connell that no additional action was required on motion 245, regarding a potential revision in expert procedure.

Continued Conflict on Team Bin’Attash

Walid Bin’Attash again expressed his unhappiness with the legal team assigned to him. The lack of trust was exacerbated by the fact that James Hatcher, who was on the team until a few months ago and with whom Bin’Attash had a good relationship, was brought back only to be quickly dismissed by defense staff. Judge Pohl made note of Mr. Bin’Attash’s comments before moving on without substantial comment.

Conflict of a different sort overshadowed much of Monday morning and early afternoon. Cheryl Bormann led off Monday morning with a 506a motion to abate the commission’s proceedings pending the resolution of a conflict of interest arising from a civil suit lodged by a former mitigation specialist on the Bin’Attash team. The suit was filed May 5 and the presiding judge sealed the complaint on May 9th. Judge Pohl noted that the team had submitted pleadings in support of (1) an independent counsel for Mr. Bin’Attash and (2) withdrawal if an abatement was not granted. Bormann argued that, in addition, the Bin’Attash team required an ex parte conversation with Judge Pohl to discuss new, privileged information affecting these pleadings.

Ryan, for the government, argued strenuously against both abatement and the ex parte presentation. He asserted that Judge Pohl should decide, as a matter of law, that “there is no legally cognizable conflict of interest under the law at this time.” Ryan cited US v Bruce as standing for the proposition that “violation of an ethical obligation does not in and of itself give rise to a conflict of interest unless it involves the attorney putting his own interests in conflict with his client’s.” He also alleged that a cognizable conflict would at least require that defense counsel be under scrutiny in a criminal prosecution or criminal investigation.

Bormann persisted, arguing that she would have to withdraw immediately if there was no opportunity for an ex parte hearing. Grudgingly, Judge Pohl granted the team 15 minutes.

After the hearing, Ryan reasserted that there was no need for an independent counsel to discuss the civil suit with Bin’Attash. Judge Pohl was also skeptical about how an independent counsel would remedy the potential conflict, though Bormann argued that if Bin’Attash became a witness in the civil proceeding “then any advice we gave would be seen and construed against us.” In the end, and by distinguishing from US v. Hurt, Judge Pohl found “no current actual or apparent conflict of interest” and “that any future conflict of interest is highly speculative.” The motions to abate, appoint independent counsel, and withdraw (for Ms Bormann, Mr. Perry, Cpt. Brady and Maj. Seeger) were thus all denied.

Subject Matter Jurisdiction and Personal Jurisdiction (Motions 408 and 502)

The majority of Monday afternoon was spent discussing the Hawsawi and Baluchi teams’ arguments against the military commission’s jurisdiction. The other defense teams unjoined and reserved raising jurisdictional issues until discovery is completed.

Major Joseph Wilkinson, for Al Hawsawi, presented international and constitutional law arguments against the commission’s jurisdiction. He asserted that the Nashiri case does not decide the matter on these grounds because that case only looked at the Military Commission Act’s statutory construction, not broader constitutional or international law arguments.

From a constitutional perspective, Maj. Wilkinson relied on Ex parte Milligan to stand for the proposition that judicial authority cannot be given to the executive, and by extension the military, and that a jury trial is guaranteed for all crimes except impeachment. At the very least, therefore, Maj. Wilkinson argued that it would be inappropriate for jurisdiction to be decided by a panel. Looking to Coleman v Tennessee and Lee v Madigan, Wilkinson further argued that statutes should be read against granting military jurisdiction in criminal cases, particularly capital cases, and that no such intention should be ascribed to Congress without clear and direct language to that effect.

While Wilkinson acknowledged that it may have been Congress’ intent to apply the MCA to this particular case, it was not Congress’s intent to stray from the legal confines of Common Article 3, Hamdan v. Rumsfeld, and broader provisions of international law—all of which would deny the commission’s jurisdiction, he argued.

Looking to international law, Wilkinson argued that the military commission lacks jurisdiction because there were no hostilities, which the MCA defines as action subject to the law of war. According to Wilkinson, the law of war does not apply in this case because Al Qaeda did not meet the intensity and organization prongs required to establish a non-international armed conflict (NIAC). From Al Qaeda’s embassy bombings in 1998 through 9/11, Al Qaeda attacked the United States only sporadically (approximately once a year). Wilkinson acknowledged that it would be easier to fulfill the intensity prong if one were to look just at the number of casualties. As to the organization prong, Wilkinson compared Al Qaeda’s loose organization to the IRA, Red Brigades, and Aum Shinrikyo’s highly regimented structures. Further, before 9/11 Wilkinson alleged that it was the normal practice of states to treat this type of violence like a civil emergency or terrorism under domestic laws. While there was some variety as to whether a full civil trial was granted (compare the Moussaoui trial with the United Kingdom’s Diplock courts), states were unified in not treating these cases under the law of war. Wilkinson went on to argue that establishing the existence of a NIAC is even harder under Additional Protocol 2 and the Tadic test, since Al Qaeda does not control substantial territory or behave like a de facto government. Lastly, Wilkinson argued that the fact that Al Qaeda declared war on the United States should be given little weight.

Connell, on behalf of Mr. Al Baluchi, declined to join in Wilkinson’s argument, deciding to only argue against personal jurisdiction from a statutory perspective. First, he disputed the government’s contention that Congress decided that hostilities existed as a matter of law. Second, he argued that the best reading of 948a(7)(C) would connect personal jurisdiction to the existence of hostilities, notwithstanding the fact that the word is omitted in the section’s text. Connell asserts that the section’s language providing that it covers offenses “under this chapter” links 948a(7)(C) to other parts of the MCA that require hostilities. Connell bolsters his case by virtue of the fact that, since Hamdi, every DC Circuit opinion has inquired into engagement in hostilities against the United States in their Guantanamo habeas cases. Finally, Connell argues that a contrary interpretation of the statute would create an ex post facto problem, since changes between the 2006 and 2009 MCAs would have effectively taken away a potential defense. In conclusion, Connell suggested that Judge Pohl set up a briefing schedule to fully ventilate the facts required to decide these jurisdictional questions.

Trivett, for the government, asserted first that the 9/11 attack was sufficient hostility to establish, as a matter of law, the military commission’s jurisdiction under the law of war. In the alternative, Trivett argued that Judge Pohl should at least grant Congress wide deference in establishing the fact that hostilities existed. He further argued that footnote 8 in Nashiri forecloses tribunals from undertaking a pretrial evidentiary hearing on personal jurisdiction as it applies to the existence of hostilities because it is an element of the offense.

In response, Wilkinson agreed with Connell’s personal jurisdiction analysis except as to his assertion that personal jurisdiction is always statutory. Connell also responded that establishing hostilities is intensely factual and cannot be established as a matter of law.

Conspiracy, Terrorism, and Hijacking Provisions of MCA as Ex Post Facto Laws (Motion 490)

The first half of Tuesday morning began with an extended discussion of the international law of armed conflict as it applies to the MCA by defense counsel for Hawsawi and Baluchi. Major Wilkinson (for Hawsawi), picking up from Monday’s argument, cited Ex parte Quirin, Hamdan, the International Criminal Tribunal for Yugoslavia (ICTY) case Prosecutor v. Cerkez, and the Nuremberg Trials for the proposition that the military commissions can only try international law of war offenses, claiming that hijacking, terrorism, and conspiracy are only crimes under domestic law. Wilkinson further claimed that since hijacking, terrorism, and war crimes are domestic law crimes and not war crimes, the trials should be transferred to civilian courts, where the detainees would receive “full constitutional protections.” Wilkinson drew a parallel between King George III’s practice of moving smuggling cases from civilian to admiralty courts to strip citizens of their rights—a practice mentioned in the Declaration of Independence and prohibited in the U.S. Constitution—and Congress’s action here.

Connell (for Baluchi) painted his argument less broadly than Wilkinson, focusing specifically on conspiracy. While acknowledging that there is no majority opinion of any court on the status of conspiracy under international law of war, Connell leaned heavily on Justice Stevens’s opinion in Hamdan for the proposition that it is not a crime under the laws of war. Connell took a slight detour to discuss the government’s arguments on appeal in Bahlul in the Court of Military Commissions Review—which is currently the subject of a cert petition to the Supreme Court—saying that the government’s argument for deference to the political branches was estopped by the Ex Post Facto clause, as it acts as a “structural restraint” on Congress. Connell also pointed out that moving jurisdictions would relieve the government of its obligation to prove every element of the crime, citing the “gateway element” from the Federal Death Penalty Act (18 USC 3591(a)(2)) as a historically very important example.

Connell then engaged in an extended discussion of Civil War jurisprudence on the subject of military commissions. Connell was particularly interested in the case of William Murphy, a U.S. citizen tried by a military commission for, among other things, conspiracy to burn down steamboats. Connell, while highlighting the government’s use of the case, pointed out it also helped his defense because it is the only case where the Supreme Court (or one justice, since justices used to “ride circuit” in those days) ruled that Congress’s passing of the Superior Orders Act to bless this use of a military commission was unconstitutional as an Ex Post Facto law.

Finally, Connell discussed conspiracy within the context of Hamdan, arguing that conspiracy is inherently an inchoate offense, and not covered under the international law of war. After examining the different types of conspiracy, Connell tells the commission about his theory that Justice Stevens created what he called the “Hamdan hint,” when he discussed in Hamdan something of a variation on Pinkerton liability for conspiracy: An act in furtherance by a defendant creates liability for all the other conspirators, but that act must be criminal in nature. Congress, according to Connell, chose not to take the hint, which is why the defense is before a military commission.

Lastly, defense counsel Alka Pradhan for Baluchi focused on terrorism and hijacking under the laws of war. She cited Ambassador Scheffer, a former ambassador-at-large for war crimes, as saying that the government, in charging these crimes under the law of war, is confusing them with criminal laws as per the seminal ICTY case Prosecutor v. Tadic. Addressing terrorism first, Pradhan attempted to make an important distinction in the cases the government used (United States v. Josef Altstoetter; Motomura (The Netherlands); Josef Bühler (Poland)), arguing that while these cases do mention “systematic terror,” they charge non-terrorism offenses, because terrorism is not an international crime. Pradhan also pointed out that the ICTR and ICTY did not include terrorism in their statutes, and that this consensus is reflected in the Tel-Oren case and United States v. Yousef (D.C. and 2nd Circuit, respectively). Pradhan cited further case law (United States v. Tiede; United States v. Busic (2nd Circuit) (examining the Domestic Aircraft Piracy Statute (49 USC 46502)) to argue that hijacking by its very nature has never been considered a war crime, but one of domestic peacetime jurisdiction.

As it neared noon on Tuesday, General Mark Martins for the government responded to defense counsel’s motion, arguing that the three provisions (conspiracy, terrorism, and hijacking) of the MCA are not unconstitutional as Ex Post Facto laws because they are law of war offenses. First, Martins argued that conspiracy is not an inchoate crime, since Congress required each defendant to commit an overt act in furtherance, and this practice was backed up by “extensive interbranch dialogue.” He also made an interesting reference to the “U.S. common law of war,” and cited Murphy as a particularly strong case for the government on conspiracy grounds. Martins continued by citing Ex parte Quirin on the terrorism provision, and the Beall case on the hijacking provision, concluding that the MCA was a “codification” of existing law and not a “creation,” and therefore was constitutionally permissible under Calder v. Bull, Quirin, and Rogers v. Tennessee.

In response to Martins, Wilkinson attacked his use of the phrase “U.S. common law of war,” saying there is no such thing, as did Connell. Connell again reiterated his “Hamdan hint,” idea, before passing it on to Pradham, who reiterated her idea about her case law proving that defendants were charged with terrorist acts, not terrorism.

Admission of Business Records (Motion 491)

Ryan, for the government, attempted to “pre-admit” duplicates of domestic business records (car rental agreements, calling card records, flight training records) relevant to the prosecution of the hijacking offense under the business records exception to the rules of evidence. Objections occured all around: Ruiz (for Hawsawi) asked that Judge Pohl hold the motion in abeyance until after discovery; Connell (for Baluchi) says he can’t find the authority for what the government is asking; Nevin (for KSM) says his team can’t determine the relevance of the documents at that moment; Harrington (for Binalshibh) points out the risk of the documents becoming part of public record before the trial; and Bormann (for Bin’Attash) explains basic trial advocacy to the Commission and the government. Ryan responds only that the practice is permissible under the business records exception. After saying simply that he “understands” the arguments, Judge Pohl moves on without ruling.

Compelling Production of “Missing” 28 Pages of 9/11 Commission Report (Motion 494)

Moving into Tuesday afternoon, Mr. Edwin Perry, speaking for Bin’Attash, explained that the defense is asking for the documents behind the 28 pages of the 9/11 Commission Report dealing with Saudi involvement in the attacks that were recently declassified and unredacted, because the government refused to turn them over after the FBI agent involved said they were not relevant. Perry requested that Judge Pohl either preserve them in unredacted form or provide them to the defense.

Pradhan also requested them as relevant for the “hostilities” discussion, since these documents might prove that United States treated al Qaeda as a diplomatic and intelligence problem, not a military one. In response to the government’s claim that they were covered by congressional privilege, Pradhan explained that while Congress does have privilege, the government is required to absorb sanctions if it doesn’t produce the document when it is required under Brady, and that in any event there was no evidence Congress had moved to assert the privilege. Nevin asked the judge to use his authority to see whether this information was gathered by torturing KSM, which would make it “fact discoverable” even if it isn’t relevant.

Ryan, for the government, responded that these were unverified leads that the 9/11 Commission and the FBI had already laid to rest, and claimed that the defense wants “original suspicions or tips or leads” that have already been resolved. “The U.S. Government kicked over a lot of rocks . . . but that doesn’t make the rocks discoverable.” Ryan cited Coleman v. Calderon and Downs v. Hoyt for the proposition that Brady does not require evidence of investigative leads to be given over if not exonerating.

Perry, undeterred, argued that the defense is entitled to all executive branch documents relating to investigation, regardless of the FBI agent’s opinion, while Pradham stated she didn’t understand how the government could be sure they weren’t relevant if they hadn’t seen the 28 pages, but had simply been told they weren’t relevant by the FBI agent. Nevin concluded the discussion by saying it is the prosecution’s obligation to review documents under Kyles v. Whitley. After discussing some administrative details, Pohl called a recess without ruling on the motion.

Compelling Original Recordings of CIA Interrogations (Motion 375)

As Tuesday afternoon drew to a close, Major Wilkinson explained to the Commission that the defense had requested the original recordings and transcripts of CIA interrogations, along with related documentation, to see if they were either available or had been destroyed. The government had responded that it has no knowledge of recordings, whether destroyed or not. Wilkinson leans heavily on pop culture in this motion, first relying on former CIA National Clandestine Service director Jose Rodriguez's book Hard Measures in claiming there is a “great deal” of circumstantial evidence that recordings of the interrogations exist, before citing the film “Zero Dark Thirty,” (because the CIA consulted on it), former CIA lawyer John Rizzo’s book Company Man, and Dr. James Mitchell’s book Enhanced Interrogation. Wilkinson even suggested calling Dr. Mitchell to testify.

Mr. Robert Swann, Trial Counsel, responded that there are no additional tapes regarding Hawsawi, and that all the discovery necessary had already been given. Swann also highlighted the defense’s reliance on “Zero Dark Thirty,” saying it was “just a movie,” and denied that the CIA was in the practice of taping interrogations. Wilkinson, in his response, parsed Swann’s use of the word “tapes,” as not touching on whether there are “recordings,” and pointed out that Swann hadn’t addressed destruction. Swann, somewhat angrily, responded that there are no recordings, “period.” Judge Pohl quickly moved on to the next motion.

Compelling Predecessor Information on Hawsawi (Motion 444)

Mr. Sean Gleason (for Hawsawi) brought up a motion familiar to Judge Pohl, explaining that the government had represented that it had turned over all threat assessments to the defense back in March, but that New York Times FOIA litigation in New York had brought another one to light. Given the late filing of the recent development, Swann stated to the Commission that he would have to look over the information before responding.

Compelling Nonredacted Detainee Information (Motion 336A)

On Friday, Connell and Ms. Suzanne Lachelier argued that trial counsel was deficient in providing the full suite of detainee records requested in AE 336 (AAA Supplement). That supplement reads that “Mr. al Baluchi respectfully requests the military commission to order the government to produce all confinement records for Mr. al Baluchi, including those not maintained in DIMS [Detainee Information Management System].” Connell further asserted that an order from Judge Pohl would help ensure that the government provide all records that the defense is entitled to under Skipper v South Carolina. Judge Pohl resolved that Swann would return to the camp to find additional information. Swann insisted, however, that the government was confident there were no other extant records to provide.

Editor's note: The statement of Chief Prosecutor Brigadier General Mark Martins on the conclusion of last week's hearings is available below.

Jordan A. Brunner is a graduate of the Sandra Day O’Connor College of Law at Arizona State University, and was a national security intern at the Brookings Institution. Prior to law school, he was a Research Fellow with the New America Foundation/ASU Center for the Future of War, where he researched cybersecurity, cyber war, and cyber conflict alongside Shane Harris, author of @War: The Rise of the Military-Internet Complex. He graduated summa cum laude from Arizona State University with a B.S. in Political Science.
Christopher Mirasola is a JD/MPP candidate at Harvard Law School and the Kennedy School of Government, where he studies America's strategic posture in the Asia-Pacific. Prior to graduate school he worked in mainland China for over two years, much of that time focused on the Chinese legal system. Chris is currently an Executive Editor of the Harvard International Law Journal and has held a legal internship at the Naval War College and Department of Defense Office of General Counsel (International Affairs).

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