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As reported Friday by Lyle Denniston of scotusblog.com, principled military defense counsel in the Military Commissions proceeding United States of America v. Khalid Sheikh Mohammed, et al. have courageously appealed over the heads of the unaccountable commission’s unresponsive military judges in a commendable and overdue effort to provide genuine, competent defense services to their imprisoned clients.
These non-UCMJ military tribunal proceedings were first instituted unilaterally by the Bush/Cheney/Rumsfeld administration, then formalized with Congressional blessing in 2006 after the Supreme Court finally stopped that particular Bush/Cheney grab for unchecked power. These irregular and unjust commission proceedings have attempted to railroad to their death, as admitted 9/11 conspirators, the long-held-and-abused clients of these military JAG lawyers.
The Appeals Court has ordered the government to reply by next Tuesday.
Filed on Wednesday, September 9, 2009, in the United States Circuit Court of Appeals for the District of Columbia, on behalf of Ramzi Bin Al Shibh, by U.S. Navy JAGs Suzanne Lachelier and Richard Federico of the Office of Chief Defense Counsel, Military Commissions, Department of Defense, in the form of a Petition for Writ of Mandamus And Writ of Prohibition:
RELIEF SOUGHT
Petitioner requests that the Court hold that the Military Commissions Act of 2006 is unconstitutional, declare all proceedings before the military commission to be a nullity, and enjoin further proceedings therein.ISSUES PRESENTED
(1) Does the Military Commission Act of 2006, on its face or, in the alternative, as applied in the military commission proceedings below, exceed Congress’s constitutional powers to convene law-of-war military commissions under the Define and Punish Clause (Const., Art. I, sec. 8, cl. 10)?(2) Does the Military Commissions Act of 2006, on its face, violate the equal protection component of the Fifth Amendment’s Due Process Clause?
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We demonstrate in this Petition that the Military Commissions Act of 2006, Pub. L. 109-366, 17 (October 2006) ("MCA"), on its face and as applied in this case, exceeds the constitutional limits on Congress’s power to authorize military commissions. In the terms of Geneva Convention Common Article 3, the commission in this case is not a "regularly constituted court." Because Petitioner has the right not to be tried by a tribunal that has been ultra vires from its inception, the petition should be granted and the case should be dismissed.
Mandamus and prohibition are remedies to be applied only in extraordinary circumstances. The situation facing Petitioner is indeed extraordinary, however. Not only is the MCA unconstitutional on its face, but the proceedings themselves have been "irregular" in every sense. In fact they have been a travesty of justice, a "system" — in the military judge’s own words — "in which uncertainty is the norm and where the rules appear random and indiscriminate." Military Judge Ruling D-126, at 3.
The reason for this state of affairs, moreover, is clear: These cases were never intended to do justice. Instead, what the government has sought, and to date received, is not a legitimate judicial proceeding but a political show trial.
The process has been corrupted by illegitimate political considerations at every step. Political distortions of the judicial process begin with the MCA itself. The provision limiting its jurisdiction to aliens (the basis of the facial challenge infra) was designed to avoid the political consequences of imposing the MCA’s facially unconstitutional procedures like this on American citizens. Sections 948c, 948d(a). No other American criminal court system is so obviously founded on such politicized and illegitimate premises.
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Most recently, the FBI began an investigation of military defense counsel that has calculatedly employed heavy-handed investigative techniques that have destroyed attorney-client relationships and the ability of some counsel to perform their defense responsibilities. The investigation was almost certainly instigated by the CIA, since it is being overseen by the agency of the Department of Justice to which the CIA reports. Peter Finn, Detainees Shown CIA Officers’ Photos: Justice Dept. Looking Into Whether Attorneys Broke Law at Guantanamo, Washington Post (August 21, 2009).
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The absence of rules has suited the prosecution’s overarching strategy, which has been to avoid all regular trial process and proceed directly to execution. The government has been explicit about this goal.
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[Footnote 4: Since her appointment in February 2007, the [Convening Authority, Ms. Susan Crawford] has denied 84 percent of expert requests from defense counsel in military commissions. The few granted experts occurred predominantly in United States v. Omar Khadr, where the Canadian government has been actively involved.]
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Throughout these proceedings, there has been a concerted effort to interfere with the attorney-client relationship and the defense function. Even as Petitioner’s competency to stand trial remained undetermined, the military judge persisted in ordering the filing of "law motions," and scheduled a hearing for December to address the law motions filed to-date, and discovery matters.
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Then, at the close of the hearing, the military judge ignored his own docketing order, addressing counsel matters by granting a motion to relieve standby counsel — even though counsel was not in attendance because he relied on the military judge’s earlier docketing order limiting the scope of the hearing to matters that did not concern his client. Thus, the most recent hearing in this case exemplified, in an egregious manner, the pattern of misleading the defense about matters that would be addressed, and continuing to do away with the role of defense counsel.
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From the beginning of this case, the role of intelligence agencies and classification rules has been foremost in dictating the course of proceedings. Any statement by the accused is presumptively classified. Attachment NN, at 1. The proceedings are broadcast with a delay in the audio feed of the closed-circuit broadcast, and the CIA security specialists determine whether to cut the feed. Id. at 2.
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The MCA vests this Court with "exclusive appellate jurisdiction" to determine the validity of final judgments rendered by military commissions. 10 U.S.C. Sec. 950g.
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"The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so."
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As for (4) and (5), the defect in the commission’s subject matter jurisdiction is "oft-repeated" because it infects every commission case under the MCA, and by the same token, raises an important – because it nullifies all proceedings under the MCA, not only Petitioner’s – and novel issue of law, in that the constitutional argument is one that, to counsels’ knowledge, has never been raised before and that does not rest on Petitioner’s individual constitutional rights but the constitutional Section 8 "enumerated power" which authorizes (or rather, fails to authorize) Congress’s enactment of the MCA in the first instance.
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Here the military commission lacked jurisdiction from the outset because the MCA exceeds the "enumerated power" that grants Congress authority to establish law-of-war military commissions in the first instance. M’Culloch v. Maryland, 17 U.S. 31 6,404 (1819).
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The enumerated power at issue here is the Define and Punish Clause. That clause grants the power to "define and punish . . . Offenses against the Law of Nations," Const., Art. I, Sec. 8, cl. 10. As a matter of its plain text and historical understanding at the Founding and since, the constitutional limits on legislation enacted under its authority are determined by reference to the "Law of Nations." (Section IV.A.1.)
The MCA exceeds these limits because, insofar as it facially discriminates between aliens and citizens, it violates the "Law of Nations" as authoritatively determined by the Supreme Court in Hamdan, supra – in particular, that part of the "Law of Nations" that requires that military commissions constitute "regularly constituted courts." (Section IV.A.2.)
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The specific substantive limits the Define and Punish Clause imposes on the jurisdiction of law-of-war military commissions are determined first from the plain text of the Constitution. If the power to convene military commissions is an exercise of Congress’s power to "define and punish . . . Offenses against the Law of Nations," then it must be the "Law of Nations" that sets the limits. That is, along with the jurisdictional limit on what crimes Congress has the power to "define" under this clause, see Quirin, 3 17 U.S. at 27-8, the "Law of Nations" also places restrictions on the jurisdiction and procedures established by Congress to determine how it will decide who to "punish" for these crimes.
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The binding effect of the Law of Nations with regard to criminal prosecutions generally – even in federal court – was similarly recognized in the early Republic.
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In short, contemporaneous with the Founding, American law and military practice as well as British law and practice all held that procedures afforded to unlawful enemy combatants were to conform to the Law of Nations.
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In sum, there is an unbroken tradition dating from before the Founding that construes the power of Congress to regulate the procedures used to try individuals charged with "offenses against the Law of Nations" to be limited by the same "Law of Nations" that limits Congress’s authority to "define" and to "punish" such offenses.
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The [Supreme] Court went on to hold, in a definitive interpretation of the "law of nations," that "a military commission ‘can be "regularly constituted” by the standards of our military justice system only if some practical need explains deviations from court-martial practice,"’ id., at 632-3 (plurality; quoting Kennedy, J., concurring, id., at 645); id., at 645 (Kennedy, J., concurring). Despite the fact that the MCA declares itself to be a "regularly constituted court," 10 U.S.C. Sec. 948b(f), it is in patent violation of Common Article 3 as construed by the Supreme Court. Accordingly, it exceeds Congress’s powers.
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Most significant, however, are the provisions that subject aliens alone to MCA jurisdiction, 10 U.S.C. Secs. 948c, 948d(a) and (c), because the pre-amendment UCMJ made no such distinction either under its regular "good order and discipline" jurisdiction or special law of war jurisdiction.
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The Supreme Court long ago held, however, that American citizens may be subjected to law-of-war military commission jurisdiction to the same extent as aliens. Quirin, 3 17 U.S. at 15- 16
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Quirin’s holding, moreover, is consistent with the unbroken history of American law-of-war military commissions, which prior to enactment of the MCA – and fully consistent with court-martial practice – have never made a jurisdictional distinction on the basis of national origin, and have in fact tried American citizens as violators of the law of war. Indeed, Americans were tried before the Founding by what we would now call a law-of-war military commission.
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In sum, it is too late in the day for the government to argue that any "practical need explains the deviations" between the MCA’s jurisdictional limitation to aliens and court-martial jurisdiction, which does not [so limit its jurisdiction].
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Irregularity of the most fundamental type – the lack of legality and notice – has been the norm in these proceedings, as the Military Judge conceded in describing them as "a system in which uncertainty is the norm and where the rules appear random and indiscriminate." Military Judge Ruling D- 126, at 3.
The fact that these are capital prosecutions only underlines the stunning nature of this admission.
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By contrast, American enemy belligerents may only be tried in federal court or in regular court-martial proceedings under the special law-of-war court-martial jurisdiction, which applies to "persons" without regard to national origin. 10 U.S.C. Sec. 818. American enemy belligerents are thus entitled to the full protections of the Constitution or the regular military justice system that tries American service members, while aliens are relegated to a criminal justice system that is specifically designed to deny them those rights.
That is straight from the trenches of our shameful, mostly-hidden-from-public-view Military Commissions For Muslims system, and is authored by patriotic members of our military JAG corps in their capacity as defense counsel for some of the tiny minority of genuinely "high-value" prisoners, legitimately suspected of terrorism, who are held captive, in segregation, away from any contact by the media or Members of Congress, in Guantanamo Bay, Cuba.
It’s a description, by military defense counsel, of a politicized, fraudulent system of show trials, that echoes similar descriptions by former commission defense counsel, as well as descriptions by multiple former commission prosecutors.
A description of a profoundly unfair, and profoundly unAmerican system of military "justice" that the Democratic Congress by way of the Senate Armed Services Committee chaired by Carl Levin, and the Obama administration are attempting to rehabilitate – by simply tinkering around the edges of a Bush-implemented system that is obviously wholly unjust, and an affront to venerable precepts of military justice long honorably upheld by those who regularly practice it.
Carl Levin is in secret conference negotiations right now with Ike Skelton of the House Armed Services Committee (with Party leadership/White House input), as they try to merge the FY 2010 Defense Authorization bills passed by the House and Senate into one. The Senate bill has resurrected the 2006 Military Commissions Act with some slight and superficial amendments; the House bill has not.
This new court filing and development ought to, at a minimum, counsel caution, and a delay of any revised MCA legislation for further study and debate, before new, unsound amendments further institutionalize a system that is unnecessary, unwise, and profoundly unfaithful to American principles of military and civilian justice.
15 Comments
The depths to which we have sunk…
Thanks, pow wow. Another disquieting read.
We don’t have a nation of laws until everyone has justice. Good move.
ObamaCo will never let those folks have a day in a real court. Almost every one of the accused will walk, based on currenty rules of evidence. SOME of those folks are genuinely dangerous, but their prosecutions have been forever botched by BushCo.
I still bet Obamaco’s final fallback, once they tried everything else to keep the accused from having their day in a real court, will be to declare them POWs and decide to keep them until the “war on terror” is over.
Boxturtle (Then argue that the Geneva conventions didn’t apply until Obama called them POWs)
These JAG lawyers with the courage to press this case should be honored by the entire country, perhaps Medals of Freedom. Maybe we could take back Bill Buckley’s, or perhaps those awarded to Tony Blair and John Howard, or maybe Robert McNamara’s and George Tenet’s.
None of them deserved the honor, these JAG lawyers do.
Instead, they’ll be shunted to do-nothing jobs, passed over for promotion, and finally given a general discharge.
Boxturtle (Remember, we’re still giving Medals Of Honor to the heros we screwed over in WWI)
Maybe there’s hope. Thanks, pow wow!
Pat Fitzgerald is no friend of the American People. He is engaged in hiding the truth from the people.
I’m not sure what this comment has to do with this post, but I couldn’t disagree more.
Patrick Fitzgerald has set consistently high standards of competence and integrity in his work as a public servant, that do our nation proud, and which his DOJ colleagues would do well to aspire to achieve.
Referring to this?
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“In an article I wrote for playboy.com, published June 16th, I detailed the kind of ”’Chilling Effect,” Fitzgerald sought to achieve with HarperCollins. In the piece I presented evidence that in discrediting a treasure trove of al Qaeda-related intelligence in 1996 (underscored by his June 25th, 1999 sworn affirmation) Fitzgerald himself might have been guilty of the very same perjury and obstruction charges he used to convict Scooter Libby in “Plamegate.”
That Playboy piece also detailed another central finding in Triple Cross that Fitzgerald may have found embarrassing: the story of Sphinx Trading. Sphinx was a mailbox-check cashing store located in the same building that housed the al-Salam Mosque of blind Shiekh Omar Abdel Rahman. That mosque location was dubbed “the Jersey Jihad office” during the “Day of Terror” trial co-prosecuted by Fitzgerald and Assistant U.S. Attorney Andy McCarthy in 1995.
Prior to that trial, Fitzgerald and McCarthy compiled a list of 172 un-indicted co-conspirators, which included bin Laden and his brother-in-law Mohammed Jamal Khalifa.
In a November 17th, 2006 piece for The Huffington Post, I made the case that if the Feds, under Fitzgerald (then head of the Organized Crime and Terrorism Unit in the SDNY), had applied just a portion of the energy monitoring Sphinx that they had used on their around-the-clock surveillance of John Gotti’s social club in Little Italy, the Towers might still be standing in Lower Manhattan. “
http://www.huffingtonpost.com/…..33530.html
If SanderO was referring to those specious accusations, bluebutterfly, he should have said so. My reply would have been the same.
It’s a predictable fact of life that the dedicated hard work of principled, modest people, who speak truth to power without fear or favor, will, when given a high-enough profile, attract like moths to a flame the attention and gratuitous criticisms of those who can’t be bothered to give incompetent hacks the time of day. [Hacks such as all the “national security”-preaching actors in government in 2001 - in the NSA and elsewhere - with access to current intelligence product, who were actually in possession of, and responsible for acting on, compelling evidence that, if taken seriously, could’ve prevented 9/11; high-level actors who to this day have never paid the slightest personal price for so catastrophically dropping the ball.]
But that, too, has next to nothing to do with this post or its comments; except perhaps to the extent that principled military JAG officers, who labor in obscurity on behalf of demonized Guantanamo prisoners, have doubtless experienced the same treatment that those – like Fitzgerald – in prominent positions of public trust, who courageously act on principle, have received from people in and out of government whose previously-unchallenged wrongdoing was or is threatened by the principled enforcement of a higher standard of conduct, and by exposure to the light of day.
Probably about as relevant to this post as your link to that self-aggrandizing author is the coincidental fact – given the topic at hand – that the last person subjected to a Bill of Attainder by the British Parliament was Lord Edward FitzGerald, for leading the Irish Rebellion of 1798.
Members of the British Parliament of 1798 would probably all-too-easily recognize, with nostalgic fondness, the cavalier mindset and vindictive opinions of our Members of Congress today, as expressed through legislation such as the Military Commissions Act, regarding the disposition of inhumanely-treated foreign citizens of the Muslim faith, long held against their will by the American military and CIA. Long forcibly held against their will, so as to subject them – regardless of any other parallel objective(s) – to a form of pre-conviction punishment, given the abandonment of, and failure to enforce even the minimal humane treatment standards of Common Article 3; all executed at the direction of those who direct the American Executive Branch of government and its military prison operations, in Cuba, and in other limited-access prisons abroad – prisons conveniently, for legislators without conscience, even further out of sight, and out of mind, of the American public.
Thanks, powwow, for digging this up. The MCA of 2006 has many other problems, and one wonders whether this petition, if successful, will dismantle the whole act, or, due to the provisions at the end, only get rid of specific clauses. Boumediene got rid of its habeas provisions already, without getting rid of the whole act. And there is much more injustice in the act, the protections of high government officials from prosecution for torture, the creation of a system where the President can create the meanings of torture and other terms in international law and no one can challenge those meanings.
But more fundamentally, it is increasingly clear that with or without shameful laws like the MCA, this nation has so warped its perception of terrorism and prisoners and international law and torture and interrogation as to be unable to try properly any one so accused, be it in a military commission, a court of law, or any other venue. The fundamental questions posed by the FBI interrogators when they cabled back to Robert Mueller during the Abu Zubaydah interrogation has effectively been answered by the run up to the military commissions trials: When Abu Zubaydah was being interrogated, FBI agents wondered whether any information at all taken from someone who had been previously subjected to torture was valid (because the information depended on the fact that the prisoner was “broken”). But during the military commissions trial preparations, FBI interrogators held sessions with prisoners at Guantanamo who were known to have been broken by torture, to “fill in the details”, ostensibly, but in reality to provide documentation of the same information that had been gathered in torture from interrogations that were not torturous.
That seems to have spilled over into the Aafia Siddiqui case and probably others. And harsh treatment has become the norm, with, in some cases, judges arguing that they are powerless to contradict prison S.O.P.s. And the tape you wrote about previously (the Brandon Mayfield case) shows that the perception of prisoners as information sources above all, and not people charged with specific crimes, has institutionalized in the Justice Department and in federal courts the rationale for creating the Guantanamo detention camp in the first place.
The only check on this type of debasing of American justice, of which the MCA is certainly one of the glaring milestones, seems to be intervention of foreign governments. You quoted above that the concentration of attention on fairness was limited to when the Canadian government intervened. In the Aafia Siddiqui case, the strip searches ended the day the Pakistani government hired its own lawyers and intervened — suddenly a judge who had been powerless to stop them for a year ordered them stopped and they stopped. The whole case is based on a plot derived under torture, though, and people are buried in ADX Florence for less.
So the question arises reading through this appeal you’ve highlighted: Are Americans, through their current government and judicial system, capable of holding a fair trial in a terrorism case at all? Because if the only way to produce fairness is through foreign intervention, perhaps there is reason to hold all of these trials in an international tribunal, not an American court. If that seems a grave blow to our pride in our judiciary, then we have a lot of work to do to regain the basis for that pride.
Well said, ondelette.
Thanks, in particular, for this:
Look the Government produced snuff films that were watched by the ruling elite.*
No declaration of war as REQUIRED by our law of the land, the constitution, no nothing. The torture , the endless mechanized slaughter, the drones,the million dead and the 6 Billion traumatized by our random, wanton blood lust.
The constitution cannot be amended by the Authority to use force,FICA,MCA or the laughable Patriot Act. Until our servants in congress stop whoring themselves out to the highest bidder and protect our Constitution, as they swore to do, we’re F****d
*Torture flicks directed from our White House(the copies are out there,CYA, for sure)
Thank you for the post, the link, and all your efforts on these topics.
Not only is the define and punish clause limited by constraints of reasonable interpretations of the laws of nations, it is also constrained by prohibitions on bills of attainder – prohbitions on a solely Executive branch proceedings to inflict punishments that is then codified by Congress as a bill.
It’s hard to ever see Levin as anything other than the co-sponsor of the DTA – an act to take away habeas and allow depravity without recourse other than legislative jingoism – all done while he was sitting on information from all over about how many being held at GITMO were innocent.
Another important point, Mary, thanks: