Apropos of the Convening Authority’s powers, we come now to the defense’s request to dismiss the case because that officer exceeded his authority, in referring charges against Al-Nashiri (AE104). How, exactly? Richard Kammen says the charged offenses were not committed in the context of and associated with hostilities—as they must be, in order to comport with Section 950p of the MCA 2009. The Convening Authority was well aware of the problem during the referral phase, but blessed the case anyway.
So who decides what counts as “hostilities?” Courts? Jurors? Violence operates on a continuum, says Kammen, and any determination as to when hostilities exist is reserved entirely to the political branches. The President notifies Congress pursuant to the War Powers Resolution, for example. Judge Pohl: what if another power attacks the United States, and there’s no WPR notification or similar gesture from the President or Congress? The court mentions Pearl Harbor. That undoubtedly initiated hostilities in Kammen’s view, but the issue was not implicated in any subsequent World War II military commission. As for the AUMF, Kammen explains, the statute does not apply to Yemen with respect to the timeframe described in the charge sheet. Instead it deals solely with the war in Afghanistan.
Kammen returns to the political branches’ unreviewable power to decide when it is peacetime or wartime. After the Cole bombing, President Clinton publicly stated the attack had occurred during a time of peace; Admiral MacDonald was not privileged to overturn that decision in referring charges against Al-Nashiri. It’s a tremendous thing, in Kammen’s view, effectively to reject the political branches’ conclusion that no war exists. And it’s a purely legal issue, not a factual one. An eyebrow raises at the bench: you mean, inquires Judge Pohl, that the members cannot make findings on the hostilities issue? That seems to cut against the statutory text. The lawyer swerves, emphasizing that his challenge is to the ultra vires acts of the Convening Authority, not to anything the members can or cannot do.
The court again presses on the initiation of hostilities against the United States. The political branches get to assess that, too, in Kammen’s view; McVeigh declared war on us, but nobody thought the United States to be in an armed conflict with the Oklahoma bomber. Soon Kammen has returned to Admiral MacDonald, and his attempt to revise history. How, he asks, can the United States decide, in retrospect, that it was at war in Yemen ten years ago, despite contrary declarations by the President and Congress? He adds that other countries can easily follow the United States’ example, first by retroactively deeming a war to exist, and then by trying our soldiers in special tribunals. That’s the view, in any case, of the retired military officers who filed briefs on Al-Nashiri’s behalf in a pending civil case in the Ninth Circuit. Kammen refers to another amicus filing in that case, and then urges Judge Pohl to grant his motion.
The prosecutor Anthony Mattivi wonders aloud: will the defense stick to its “hostilities is a legal issue” position, when at long last, we come to the instruction phase of this case? He asks because, as a matter of statutory language, the existence of hostilities is a common factual element of all commission offenses. That’s not to deny that the “war” issue is political in nature. It undeniably is, but so what? The political branches, by means of the MCA 2009, did not require the government to prove, beyond a reasonable doubt, that any offenses were committed during a declared “war.” Instead, commission members must decide whether the offenses occurred in the context of and associated with “hostilities.” This is a duty that Congress and the President validly may impose upon a military jury, according to Mattivi.
And revising history? Admiral MacDonald didn’t do that. On the contrary, he made lawful, threshold determination that the charged offenses could have occurred during “hostilities.” We know it was lawful in light of the two CMCR opinions released to date, Hamdan and Al-Bahul. In both, no error was found based on the “hostilities” instruction given to the members at trial. True, the issue was not briefed—but the CMCR was required to review the legal and factual determinations below, and affirmed both accuseds’ convictions. The question is not legal, Mattivi contends. On the contrary, it is entirely for the members to determine as factual matter, just as the members did in Hamdan and Al-Bahlul. After adding a few words about Al-Nashiri’s civil case, he yields to Kammen.
Al-Nashiri’s attorney isn’t sure what remains of Hamdan, but believes that neither that case nor Al-Bahlul cut against his client. The court interjects, and asks about the relevant statutory provision: doesn’t its placement suggest that “hostilities” is an element of the defined offenses, which members must address? How could that requirement ever be met, if Kammen’s “legal issue” theory is correct? The lawyer half-answers: under the prosecution’s theory, he says, if there’s no proof of a declaration by the political branches as to the existence of hostilities, then the court must direct a verdict. Again, what matters, the lawyer insists, is that Admiral MacDonald acted ultra vires. The Convening Authority utterly ignored the political branches’ determinations that no hostilities existed during the relevant time period. That’s what we are asking you to remedy, Judge Pohl. The court confirms that a denial of AE104 will not foreclose subsequent defense argument about instructions given to members on the hostilities question.
A brief recess commences. During it, we get the news: the court has elected to adjourn for the day. We’ll pick up tomorrow, though slightly after than usual on account of the hurricane. Showtime is 11:00 a.m.