October 24 Session #6: He Can't Be Neutral

The court has returned from lunch, which was followed by a quick Rule 802 conference.  Per that discussion, Judge Pohl will defer consideration of AE118, a motion to compel, in addition to the secrecy motions, AE112 and 113.  Al-Nashiri remains in the courtroom. LCDR Stephen Reyes now argues in support of AE 117---in which the defense seeks to vindicate the accused’s right to a neutral convening authority.  It’s a systemic attack on the Convening Authority system as a whole, he says, and not on any specific decisions. According to Reyes, the Convening Authority has at least one power that his equivalents do not in courts martial: that of funding the defense.  (Such power resides with the Judge Advocate General.)  The lawyer reviews then Convening Authority’s vast, and to Reyes, irreconcilable duties.  Among other things, the Convening Authority refers charges capital or non-capital; selects the chief judge of the military commissions; authorizes plea agreements; picks members; and funds the trial judiciary and defense offices.  All this makes for inherent conflicts, as Reyes sees things---no person can serve so many functions faithfully, at the same time.  He notes the functional difference between Admiral MacDonald and his counterparts in the courts martial.  The latter serve alongside those subject to discipline, and factor that into the exercise of their duties in evaluating potential cases.   Not so here, where the accused are said to be the Convening Authority’s enemies.  Admiral MacDonald’s biased performance only further supports Reyes’ broader claims about the Convening Authority structure.  He can’t be neutral, your honor, and due process requires neutrality---particularly when the death penalty is in play.  Reyes returns to his seat. Due process has been satisfied in this case, says CDR Andrea Lockhart.  The Convening AUthority properly exercises powers granted to him by the MCA 2009.  And Reyes' critiques notwithstanding, he is a neutral officer, one whose decisions are subject to review by the military judge.  Surely there can no complaint about Judge Pohl’s neutrality: some of his rulings regarding the Convening Authority have gone the prosecution’s way; others have gone Al-Nashiri’s way.  She then cites various constraints on the Convening Authority.  Its member selections are subject to defense challenges; its judgments also are shielded from unlawful influence.  The prosecutor adds that maintaining discipline---of all warfighters, not just military members---is a goal of commissions and courts martial alike.  In any case, she says, the defense concedes that there’s no evidence of partiality here, as a factual matter.  Lockhart asks Judge Pohl to deny the defense’s motion, and sits down. Reyes is back, and notes case law that supports him.  According to these decisions, the concern in courts martial practice is with the good-order of the ranks and well-being of servicemembers.  Suffice it to say that the Convening Authority in a military commission doesn’t share that concern.  Reyes also observes that the prosecution hasn’t addressed the application of the Constitution’s due process clause.  He insists that it applies, and finishes his reply argument. A ruling from the bench? Nah.  The court takes the Convening Authority’s neutrality under advisement.