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4/17 Session #1: A Special Trial Counsel, and a Pause

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Thursday, April 17, 2014 at 10:14 AM

We’re back in session.  The military judge, Army Col. James L. Pohl, calls proceedings to order.  Of the five 9/11 accused, there are two absentees: Walid Bin Attash and Mustafa Al-Hawsawi.  That prompts a voluntariness discussion, which proceeds according to the expected script.

First on our substantive agenda, and all of that agenda, really: the FBI’s recent interview of a defense security officer (“DSO”) assigned to Binalshibh’s team—and the alleged intrusion into defense functions arising from that interview.  Recall that the FBI had been looking into the publication of “An Invitation to Happiness,” KSM’s goofball treatise on morality, culture, and religion.  And, importantly, upon speaking with FBI personnel, the Binalshibh team’s DSO seemingly executed a non-disclosure form presented to him by FBI agents.  This document apparently purports to create a relationship of trust between the counterparty and the FBI—or something similarly in tension with the DSO’s allegiance to Binalshibh and company.

Upon learning of this, defense counsel immediately asked for a pause in proceedings and an inquiry by the court, given the compromise of a staffer ostensibly aligned with the defense; the possibility of a conflict; and the chance that other defense staffers might have been similarly questioned.  After litigation on Monday, the military commission orally ordered any defense team members to disclose any FBI contacts to defense lawyers—notwithstanding any suggestion to the contrary by FBI non-disclosure materials.

That brings us to today, and to AE292F—a motion filed late last night, and not yet appearing on the docket. The prosecution on Monday proclaimed its natural exclusion from any inquiry regarding the FBI security investigation; for that purpose, the government yesterday appointed a special trial lawyer, Fernando Campoamor-Sanchez, to represent the United States’ interests in court. Sanchez, in turn and through the vehicle of AE292F, has asked for a delay until April 21, when he’ll file a written response.  Having that in mind, prosecutor Edward Ryan says he can’t really speak about any judicially supervised investigation into the FBI’s own investigation. Accordingly, his crew has taken as many steps as they can, he says, in order to remain insulated.  He sits.  And when KSM attorney David Nevin rises, Ryan immediately objects, given the functional absence of the United States’ representative from any litigation today. Ryan is overruled though, and Nevin begins, the court having inquired only about the best procedural way forward—and not about any substantive legal matters warranting response from the prosecution.   Read more »

4/15 Motions Session #3: What Sorts of Evidence, Part Two (And a Recess)

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Tuesday, April 15, 2014 at 11:26 AM

Break being over, Cheryl Bormann picks up her thread: the conflict between absurdly strict secrecy controls and her own obligations to her client. Bin Attash is angry these days, she says, because he must (among other things) needlessly wait for counsel to return pieces that Bin Attash himself has written to him, pending security scrubs.  She asks Judge Pohl to get to the bottom of this.

Harrington emphasizes his outrage.  This isn’t hypothetical for him; and there is a conflict in play, no matter what Ryan might say. A visit by the FBI to the DSO is functionally equivalent of a visit by the FBI to defense counsel—and that’s serious, and poses a real conflict, one extremely difficult to discuss with the defense’s already quite suspicious clients.  Given all of that, Harrington is surprised that the prosecution isn’t outraged, too, under the circumstances.  When asked, Harrington agrees to identify his DSO by name, for purposes of an order compelling testimony.

Judge Pohl asks one last thing, of prosecutor Edward Ryan: if the court orders the FBI agent who questioned Harrington’s DSO to be produced, does Ryan think the FBI will resist?  Ryan alludes to government privileges, internal procedures, and so on—but in any case, he says can’t really speculate about processes from which he’s naturally excluded.  Nevertheless, he editorializes that it would be a mistake for the court to inquire into an ongoing FBI matter.

The windup, now the pitch: Judge Pohl will this afternoon order *any* member of the defense team who has been contacted by the FBI to disclosed the fact of that contact to defense counsel.  If there’s an issue that requires commission attention thereafter, defense counsel can seek relief as needed. Judge Pohl adds that he wants the defense to submit, by 1700 tomorrow, any proposed orders for production regarding witnesses. Such proposals will be copied to the government, unless there’s a compelling reason to submit them ex parte.  (The court adds that there probably won’t be any such reason, given the likely submission to third party witnesses.)

The court will not meet tomorrow, but might meet Thursday.  In the meantime, we stand in recess.

4/15 Motions Session #2: What Sorts of Evidence, Part One

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Tuesday, April 15, 2014 at 11:18 AM

Our recess concludes; the action resumes. KSM lawyer David Nevin begins the defense’s remarks on possible evidence it might offer to support of AE292—a motion alleging inappropriate FBI contacts with a defense security officer (“DSO”) assigned to Ramzi Binalshibh’s team, and seeking an abatement of procedings.  (By way of reminder, the FBI inquiry apparently arose in connection with the media’s publication of “Invitation to Happiness”—better known as KSM’s nutty manifesto on religion, culture and various and sundry other topics—some time back.)   For Nevin, the point of the AE292 is to ask the commission to make an inquiry into the whole affair.

That task ties in with a related, and even more recently arising issue: secrecy procedures mandated by the case’s protective order, so far as they pertain to (among other things) the leak of KSM’s wacky diary.  Nevin says he had respected the protective order’s rules, in handling the leak matter and filing court documents related to it; but now, he says, the government has suggested that somehow, by affirming such compliance in his written pleadings, Nevin himself committed a secrecy infraction.  How can such stuff possibly be “classified?”  The government’s claim puts him at a great disadvantage, the visibly irritated lawyer says: the point of these rules is to protect national security information, not to shield the government from embarrassment or to overburden defense counsel.

His complaint lodged, the attorney overviews some possible documents the defense would put on, in litigating AE292: among other things, an agreement that the FBI agents asked the Binalshibh team’s DSO to sign, which barred the DSO from disclosing information; a declaration from Binalshibh lawyer James Harrington, regarding his conversations with the DSO; a live witness, the DSO’s supervisor, who is present on GTMO; and ex parte evidence.  Nevin pairs this catalog wiht a recitation of applicable law: when there’s a possibility of a conflict, there’s an obligation imposed on the tribunal to inquire; and an obligation on counsel, to avoid conflicts of interest.  Finally, when asked, Nevin tell shte judge that some key testimony would come, on an ex parte basis, from FBI agents who interviewed the DSO; the DSO himself; and (interestingly) prosecutor Johanna Baltes, who serves as the Chief of Staff to the Deputy Director of the FBI, when she’s not prosecuting cases.  (he ex parte inquiry is needed, in Nevin’s view, given that the FBI investigation directly implicates defense strategy and work product. Read more »

4/15 Motions Session #1: Housekeeping, and FBI Things

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Tuesday, April 15, 2014 at 9:24 AM

It’s Tuesday, 9:12 a.m., when our Fort Meade screen comes to life: down at Guantanamo, the military judge, Army Col. James L. Pohl, calls proceedings to order.

Who’s here? Khalid Sheikh Mohammed and Ramzi Binalshibh only, of the five accused.  This means a voluntariness colloquy. As per usual, the government calls a pseudonymous witness, a GTMO JAG liaison, who tells prosecutor Robert Swann that the absentees—Walid Bin Attash, Mustafa Al-Hawsawi, and Ammar Al-Baluchi—-knowingly and voluntarily waived their rights to attend today.  James Connell III, Al-Baluchi’s civilian attorney, protests: the government hasn’t sought to put on a witness, per military commission rules, he says.  The objection is promptly overruled.

Where are we on this whole “FBI visited the defense security officer” issue—that raised by Binalshibh’s attorneys yesterday in court, and Sunday, in an emergency filing?  The prosecution apparently has replied to that motion in writing, according to the military judge.  And the government’s view is, unsurprisingly, that the FBI matter can take a backseat to the matter of Binalshibh’s presumption of competence.  But that’s the thing, Judge Pohl says: since competence is presumed, on the one hand, and since the defense isn’t really questioning Binalshibh’s competence, on the other, there’s no need for a hearing under Rule 909 regarding Binalshibh’s fitness to take part in the proceedings.

Which is to say: we’ll move first to FBI matters, as alleged in defense motion AE292.  The military judge asks: what evidence, if any, does Binalshibh lawyer James Harrington wish to put on, regarding alleged FBI contacts with his team’s Defense Security Officer?

We’ll find out around 9:40, after a brief recess.

4/14 Motions Hearing #1: Ex Parte Hearings, FBI Investigations, and a Recess

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Monday, April 14, 2014 at 10:03 AM

It’s game time, y’all. The military judge, Army Col. James Pohl, ascends the bench and resumes pretrial proceedings in the 9/11 case.  All five accused are present, along with their lawyers and a few other folks.

We begin with the advice of rights regarding presence at a pre-trial session—and the possible consequences that might follow even a knowing and voluntary waiver of those rights.  Judge Pohl reads a familiar script to the accused (bar Binalshibh, whose competence—and presence—is at issue this week), and asks each if they understand the right to be present and the potential downsides of skipping out.  All four say they do.

Yesterday, motion AE 152V was filed by the government; it apparently also pertains to Binalshibh and competence matters, and seeks an ex parte hearing. The military judge isn’t inclined to grant it on the papers—and thus, a hearing indeed will be required, now if the government wishes to proceed.  Does it want to?  Indeed it does, says prosecutor Jeffrey Groharing.

Al-Baluchi’s counsel, James Connell III, protests: he’s unclear as to what basis the government is proceeding here; the government only gets to seek ex parte hearings under certain conditions and according to certain rules, and the prosecutors haven’t identified either here.  At any rate, Connell says he can file a substantive response to the prosecutors within an hour.  Can he have a little time?

Wait: Binalshibh lawyer Jim Harrington wants to postpone proceedings for a lot more than an hour.  He request for an abatement arises in connection with an emergency defense motion, filed over the weekend under seal and alleging that the FBI sought to interrogate the security officer assigned to Ramzi Binalshibh’s defense team. According to Harrington, the security officer was questioned about matters pertaining to all defense teams, too.  The investigation makes for a conflict of interest, in his view: between the defense team’s interest in responding to the FBI inquiry, and its interest in representing Binalshibh.  And, Harrington adds, the security guy can’t continue on Binalshibh’s team, pending the outcome of the investigation.  He thus asks Judge Pohl to take up the issue—and for an abatement in all other proceedings in the meantime.  Read more »

2/24 Motions Hearing #5: Medical Care

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Wednesday, February 26, 2014 at 8:10 AM

Argument comes now on AE 199, a government motion seeking the court’s permission to conduct DNA testing on four hair samples in an FBI lab without the presence of the defense’s expert witness.  (It’s not exactly profound stuff, so we’ll mention it here only it passing.)  When that’s done, Judge Pohl turns to AE 205, a defense motion asking the commission to review Al-Nashiri’s medical care. This includes a motion to compel the appearance of various witnesses for an evidentiary hearing on the subject.

Learned Counsel Rick Kammen says that Al-Nashiri was diagnosed with post-traumatic stress disorder (PTSD) by government physicians, but was not given adequate medical care after that diagnosis. Accordingly, the defense wants the government to present the doctors that diagnosed and then oversaw Al-Nashiri so that the court can determine whether they have expertise with PTSD, why they were resistant to meeting with a PTSD expert, and whether they were simply indifferent to Al-Nashiri’s diagnosis. The defense also seeks up-to-date records of Al-Nashiri’s medical treatment to determine whether the government has addressed the issue of his lack of treatment.

Commander Andrea Lockhart rises for the prosecution and states that the court can decide the issue of Al-Nashiri’s medical treatment as a matter of law and thus no evidentiary hearing is necessary. Because defense counsel does not claim that the defendant’s medical care or lack thereof has interfered with his legal rights or due process—such as by impeding the right to counsel or preventing the defendant from making statements—the issue has no nexus to the commission and therefore can be resolved as a matter of law, and with deference to the detention facility.

Lockhart also contests the specific medical experts that the defense seeks to present. She observes that one, the head of the detention facility, was not responsible for overseeing Al-Nashiri’s medical care and so is not relevant. Another, the one that diagnosed Al-Nashiri, is only relevant if the defense can prove that Al-Nashiri’s PTSD was a result of torture, rather than incarceration or something in his past. Lastly, the unnamed doctors who directly oversaw the defendant’s treatment at the facility would be redundant upon the defense’s pending receipt of updated medical records. Lockhart concludes by asking the court that, if the doctor that diagnosed Al-Nashiri be allowed to testify, that the government be given all of the records upon which that testimony will be based and also that it’s own expert be allowed to examine the defendant.

On rebuttal, Kammen argues that the testimony of the head of the facility, or “warden” in Kammen’s words, is relevant because the record should reflect that the individual who “runs the place” failed to properly supervise those under his charge. Judge Pohl remarks that this sounds like the defense is asking him to review the conditions of confinement, which is only appropriate if there is some nexus to the case before the commission. Kammen points out that the environment in which Al-Nashiri’s medical care took place is important for determining the nature of that care.

Lockhart passes on rebuttal and the court moves on to a number of scheduling issues to round out the day. Judge Pohl recesses for the day with plans to return on Wednesday for a closed hearing to finish AE 181.

2/24 Motions Hearing #4: Visiting Camp 7

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Tuesday, February 25, 2014 at 1:12 PM

The afternoon session kicks off with AE 171, a motion that would allow members of the defense team to visit the facility in which Al-Nashiri is housed, referred to as Camp 7, in order to assist the defense in making a sentence mitigation presentation if Al-Nashiri is ultimately convicted and faces the death penalty.

While the government does not object to such a visit, Learned Counsel Rick Kammen explains that the government is seeking to place numerous restrictions on any such visit, including limiting the defense to one visit of Camp 7 by two lawyers and a linguist and a prohibition on speaking with guards and other personnel at the facility. Kammen requests two twelve-hour visits by five people and a linguist, as well as meetings with Camp 7 personnel. He also clarifies that the two visits would likely be separated by several months and the second visit would be used primarily to update records on the conditions of the facility.

Lt. Bryan Davis expresses concern with defense counsel speaking with guards as they visit Guantanamo because it would distract the guards from doing their jobs. Judge Pohl asks why the government could not make guards available for interview when they are not on duty. Davis argues that this would be a separate issue from the facility visit and would require that defense counsel make a specific request to meet with particular guards or personnel who the defendant believes are relevant to his defense. Davis also insists that one twelve-hour visit is sufficient to tour the facility, to which Judge Pohl responds that any potential second visit would likely come up months after the first and the court ”can cross that bridge when we get there.” Finally, Davis requests that the court limit the defense team visiting Camp 7 to three people, including a linguist, due to security concerns at Guantanamo.

Kammen returns to urge the court to provide for two visits initially to avoid future litigation on a potential second visit. Davis passes up the opportunity for rebuttal. Judge Pohl thanks counsel and moves on to the next motion.

2/24 Motions Hearing #3: Change of Venue

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Monday, February 24, 2014 at 8:50 PM

The last matter for the court this morning is AE 187, a defense motion seeking to move the location of the military tribunal from Guantanamo Bay, Cuba to Norfolk, Virginia.

Commander Mizer, for the defense, points the court to Rules for Courts-Martial (RCM) Rule 606(b)(11) as authority for the claim that the case for a present-day attack on the U.S.S. Cole would be held in Norfolk because the “crime scene,” convening authority, witnesses, and even prosecution and defense lawyers all reside in or near Norfolk. Judge Pohl questions whether he has the authority to change the venue when the RCM provision cited by the defense does not have an analogous provision in the rules governing the military commission. In fact, doesn’t the lack of such a change of venue provision indicate Congress’s intent not to provide that power? Mizer notes that two provisions of the Military Commissions Act, 10 U.S.C. § 949j, which requires that defense counsel have comparable opportunity to obtain witnesses before a military commission as it would in federal court, and 10 U.S.C. 949a, applying courts-martial procedures to military commissions, fail to expressly carve out changing venue from the court’s power and so the court is able to change venue. Finally, Mizer notes that the prosecution previously argued that the military commissions lack subpoena power because, in part, they have the option to change venue and, as such, the court should exercise that power if it ultimately decides it does not have subpoena power.

Judge Pohl asks Mizer how he would get around the provision of the National Defense Authorization Act prohibiting the expenditure of Defense Department funds to transfer individuals from Guantanamo Bay to the United States. Mizer urges the court to utilize funding either from the Department of Homeland Security or, more likely, from the U.S. Marshals Service who have general responsibility for moving prisoners across the country.

Lt. Bryan Davis rises for the prosecution and rejects the defense’s contentions that the location of the trial “must have some nexus to the location of the charged offenses” and that holding the trial in Guantanamo Bay deprives the defendant of his right to a fair trial. In regards to the nexus between the location of the trial and the charged offense, Davis notes that such a requirement has never been held to apply to military commissions. Nor is this inconsistent with Article III courts, which often hear cases taking place on the high seas in a location with no nexus to the site of the charged offense. As to potential prejudice to the defendant from a trial at Guantanamo, Davis argues that such prejudice is hypothetical and lacks any evidence bearing out such assertions. Because the jury will be drawn from around the world and will be the same whether the case is heard in Guantanamo Bay or Norfolk, there can be no prejudice to Al-Nashiri. Finally, regarding witnesses, Davis notes that while the prosecution contends that the court lacks subpoena power, it may still exercise compulsory process to issue a subpoena and require a witness to testify remotely. Thus, there is no reason to overturn the convening authority’s decision, pursuant to the Rules for Military Commissions (RMC) Rule 504(e), to hold the trial at Guantanamo.

Mizer responds on rebuttal that pretrial publicity is not the only consideration for a change of venue in the military context and the military judge, at least under the RCM, has the authority to change the convening authority’s venue determination.

The government passes up the opportunity for its own rebuttal and the court recesses until the afternoon session.

2/24 Motions Hearing #2: Capital Punishment & Classified Evidence

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Monday, February 24, 2014 at 7:51 PM

The next motion before the court is AE 181, a defense motion to dismiss the capital punishment referral for all the charges against Al-Nashiri on Due Process and Eighth Amendment grounds because he will not be granted access to classified evidence relevant both to the charges against him and, subject to conviction, to mitigation at the penalty phase. Because at least some of the necessary information for this motion is classified, the court determines at the start that part of the hearing on this motion will be conducted in closed session.

Learned Counsel Rick Kammen explains that in criminal cases the accused has a right to make certain decisions as to his own defense and, especially in a capital case such as this one, defense counsel is obligated by professional responsibility rules to consult with the defendant prior to trial. Kammen calls the “improper classification” of fourteen percent of the evidence requested by the defense on discovery “a structural impediment” to the effective assistance of counsel in this case that places defense counsel “in a professionally complicated position that . . . will require every member of the defense team to consult with their individual ethics state bar authorities.” Kammen distinguishes this case from cases before Article III courts featuring classified evidence because, in those courts, classified evidence is often reviewed by specially cleared counsel and then digested into an unclassified summary that is available to the entire defense team. In Al-Nashiri’s case, however, the classified material is “completely withheld” from the defendant and Kammen floats the possibility, despite the prosecution’s protests to the contrary, that Al-Nashiri could even be excluded from parts of his own trial when classified material is discussed.

After a 15-minute recess, prosecutor Justin Sher rises to argue the government’s position, starting with an assurance that the government’s case in chief (and, as Sher later reveals, presentencing) against Al-Nashiri will be “completely unclassified.” Sher next makes the analogy to classified evidence used in federal civilian courts, noting that “courts consistently hold that . . . an uncleared accused may not access classified information in pretrial proceedings.” Judge Pohl asks how the court should handle efforts by defense counsel to both introduce classified evidence in its case in chief, as well as discuss such evidence with Al-Nashiri while preparing its case in chief. Sher responds that, at trial, the court and government would work through the Rule 505 process to determine whether the defense could present classified evidence with the defendant present; however, defense counsel cannot present such evidence to Al-Nashiri pretrial. Further, says Sher, the defendant may discuss classified evidence with his attorneys to the extent that he knows that information already.

Kammen returns for rebuttal, again distinguishing this case from various federal civilian court cases in which defense counsel or the defendant had access to unclassified summaries of classified evidence. Kammen also rejects the government’s argument that defense counsel may discuss classified evidence with Al-Nashiri once he affirmatively raises it with counsel. He points out that “real lawyers” do not simply ask the defendant to “tell me what you remember,” but instead consult with the defendant based on the evidence presented against him.

The heart of Kammen’s rebuttal focuses on the ability of defense counsel to present classified evidence as part of its case in chief. While he accepts the Rule 505 process upon presentation of such evidence by the defense, Kammen focuses on Sher’s comment that, after the 505 litigation, “the ball . . . is in the government’s court.” Judge Pohl asks Sher to return to the podium to respond to a hypothetical situation in which, after the 505 process, the court determines that classified evidence is admissible and there are no adequate substitutes or stipulations. After expressing his belief that such a circumstance, given the number of available remedies, is incredibly rare, Sher says that the defendant would likely be able to hear the evidence presented by defense counsel in court. Kammen further points out that such a process for defense counsel revealing classified information would make cross-examination particularly arduous where Al-Nashiri becomes aware of classified evidence against him for the first time at trial.

With that, the court moves on to the next motion with the intention of returning to AE 181 in closed session.

2/24 Motions Hearing #1: Things Limburg, Part Three

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Monday, February 24, 2014 at 5:26 PM

The morning’s proceedings begin with a return to Al-Nashiri’s alleged role in the attack on the French oil tanker the M/V Limburg in Yemen in October 2002. In AE 168, CDR Brian Mizer, counsel for Al-Nashiri, seeks the dismissal of charges pertaining to the attack on the Limburg on the grounds that the commission lacks jurisdiction under international law. These are charges seven through nine on the charge sheet for those keeping track at home.

Mizer opts not to rehash earlier arguments about Hamdan II and incorporation of international laws of war into the court’s jurisdiction and jumps immediately to the Military Commissions Act, particularly 10 U.S.C. § 948a(7)(A), which provides the military commissions jurisdiction over unprivileged enemy combatants who have engaged in hostilities against the U.S. or its coalition partners. Noting that the attack on the Limburg took place in Yemeni waters, against a French ship carrying Iranian oil under a Malaysian contract, and indirectly killed a Bulgarian national, Mizer states that the U.S. does not have jurisdiction over claimed related to the attack. In response to a question from Judge Pohl, Mizer further argues out that France did not believe it was a “coalition partner” involved in an armed conflict in Yemen in 2002, pointing out that the congressional cafeteria had renamed french fries “freedom fries” at the time.

Mizer also argues that the case cannot fall under international law’s protective principle, which he says only provides jurisdiction, where reasonable, over acts that “have an effect on state security or the functioning of the government,” neither of which is the case here. To find otherwise, says Mizer, would be to create a form of “universal jurisdiction.”

Brig. Gen. Mark Martins, the chief prosecutor, disagrees with Mizer’s framing of the issue as one of international law, noting that as a matter of statute, there is a “clear grant of jurisdiction based on historical law of armed conflict bases to try unprivileged enemy belligerents who are noncitizens for the offenses that are punishable by a military commission.” He points out that Section 948a(7) grants jurisdiction not only over unprivileged enemy belligerents who have engaged in hostilities against the U.S. or its coalition partners, but also over individuals who were a part of al Qaeda at the time of the alleged offense. Because this attack allegedly took place at the hands of the same al Qaeda cells and in the same general waters as attacks on the U.S.S. Cole and The Sullivans, in an effort to “disrupt the U.S. and world economies” and increase the price of oil, Martins argues that the court has jurisdiction over the Limburg attack. Further, while not relying on France’s role as a “coalition partner” to establish jurisdiction under Section 948a(7), Martins does state that the government considers France a coalition partner because of its military efforts alongside U.S. forces in the fight against al Qaeda, even if the two countries did not agree on operations in Iraq. Although none of this has yet been proven, Martins argues that the court should allow the government to prove these at trial beyond a reasonable doubt. In closing, Martins strongly urges the court to focus primarily on the statutory argument, rather than the protective principle, and only refers to that principle by analogy because this case applies the law of armed conflict.

On rebuttal, Mizer points out that the prosecution never raised the other provisions of Section 948a(7) in the pleadings and requests an opportunity to supplement the defense’s pleading to address this argument, stating that “there are serious legal issues raised by mere membership in al Qaeda in affording this court jurisdiction” under the First Amendment. Judge Pohl pushes Mizer to clarify whether jurisdiction in this case relies on mere membership in al Qaeda, or membership plus actions, but Mizer points out that providing jurisdiction under Section 948a(7)(C) would, according to the text, require only membership with nothing else. Mizer also rejects classifying France as a “coalition partner” in the context of Yemen in 2002, which was separate and distinct from the fighting in Afghanistan. Finally, Mizer suggests that the court hold an evidentiary hearing to determine whether the prosecution’s claims of effects of this attack are borne out by the facts.

Finally, Martins returns to clarify that the prosecution did claim in its initial brief that Al-Nashiri’s alleged membership in al Qaeda should have notified him of the possibility that he would be haled into a court in the U.S. Martins also dismisses First Amendment problems because the accused must not only be members of al Qaeda, but also take some action punishable under the statute.

Judge Pohl asks the defense to file a new pleading by March 7 on the issue of membership in al Qaeda as a basis for jurisdiction, provides the prosecution with two weeks from that date to respond, and moves on to the next motion.

2/21 Motions Hearing #10: Sequestration and Judicial Notice

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Friday, February 21, 2014 at 4:46 PM

There are two more significant motions up today, the first of which Navy Lt. Paul Morris presents ever briefly.  In AE200, prosecutors have asked the court, in advance, not to exclude victims from sequestration during the trial’s penalty phase.  The people in question wouldn’t be merits-phase witnesses, either—though they might wind up being penalty-phase witnesses.  After a quick discussion, Judge Pohl grants the request in principle, on an interim basis, while reserving final decision for when, at last, we draw near to trial.

After some easily-skipped-over procedural bickering, we move to AE186—a prosecution notice to take judicial notice of certain adjudicative facts. As Lt. Morris explains, the rules allow this, when facts are generally known or beyond reasonable dispute.  It seems we have at least some dispute here, given the defense’s opposition; at any rate, Lt. Morris explains that the government asks the court to take notice of six essential facts.  (He adds that the members remain free to accept or reject prior judicial notice—something Judge Pohl visibly doubts.)  Among other things, the facts concern Bin Laden’s issuance of his two famed fatwas, one in 1996 and 1998; the United States’ 1998 attack on Bin Laden’s training camp; the issuance of an executive branch order, also in 1998, designating Bin Laden and company as terrorists; and the location of a hotel in Aden, Yemen.   When asked, Morris tells Judge Pohl that many of these items bear directly on the “in the context of and associated with hostilities” element, which is common to all the charged offenses that the prosecution must ultimately prove.  Morris then ticks through each asserted fact, noting all the reasons why they simply cannot be disputed reasonably.  It is not enough, for example, to nitpick about the details surrounding the United States’ 1998 missile strike against Bin Laden, as the defense does in its pleading.

All this, to Kammen’s eye, represents nothing more than an attempt to grease up the machinery of death.  No civilian court would allow for judicial notice in a capital case like this.  Prosecutors haven’t attached any original documents, either; instead, he says, we have a translation of the original, produced by some unnamed person under uncertain circumstances. Certainly that much is grounds for reasonably dispute.  Kammen then pounces on Morris’s “hostilities” point; under such circumstances, judicially noticing the fatwas would effectively direct a verdict against Al-Nashiri on the hostilities question.  Recall that President Clinton himself called the Cole episode a “peacetime” attack—something Kammen’s crew had planned to highlight at trial, but obviously couldn’t, if the existence on the existence of “hostilities” had been judicially noticed in advance.  For heaven’s sake, venue is never a subject for judicial notice; how could an element of an offense be?   Read more »

2/21 Motions Hearing #9: Aggravating

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Friday, February 21, 2014 at 4:33 PM

So what’s next?  A six-strong battery of defense attacks to various “aggravators”—allegations that, if endorsed by the panel after conviction, would call for a vastly greater measure of moral culpability, and thus make Al-Nashiri more likely to receive the ultimate punishment.  (RMC 1004(c) sets forth so-called “aggravating factors” for capital cases, at least one of which must be found by a military panel before they impose a death sentence; additionally, another rule, RMC 1001, permits prosecutors to admit aggravating evidence after any commission conviction, capital or no.)  A properly instructed jury, as Learned Counsel Rick Kammen explains, must be told that each individual can decide not to impose death as a moral matter.  But you don’t get that sort of appropriate tailoring from the aggravators described in the rules, and here challenged by the defense.

Take AE191, a defense motion to strike a the sixth of the prosecution’s aggravation claims—namely, that Al-Nashiri has engaged in a continuing pattern of violence.  Kammen reasons that such a pattern is essential to warfighting, and also essential to prosecuting his client before this military commission. Ditto the other aggravators described in motions AE192 through AE196; with each, prosecutors have sought to make Al-Nashiri’s death more likely, simply by re-alleging that he engaged in conduct inherent in armed conflict. Consider aggravator #5, which purports to expose Al-Nashiri to greater punishment than other accused, because Al-Nashiri allegedly “creat[ed] a risk to the national security of an adversary.”  Well, you can’t have it both ways, Kammen argues.  In a war, Al-Nashiri gets to behave like a warrior; he doesn’t simply lose that status because some isolated conduct subjects him to trial.

No so, the government rejoins.  “What’s proper in war,” argues prosecutor Justin Sher, is “following the rules.”  He proceeds on this theme for a spell, before Judge Pohl interrupts and asks whether the members have to find these aggravators by a reasonable doubt;  Sher isn’t certain.  At any rate, though, his counterargument is this: under 1004(c) and 1001, the members may consider any stuff that is unique to Al-Nashiri. (This echoes the prosecution’s pleading. It claims that case law squarely contradicts Kammen’s position; and that the aggravators alleged do not in fact duplicate jurisdictional or substantive requirements in the Military Commissions Act.)

Kammen returns, and manages at once to summarize and lambaste the government’s rebuttal.  As he understands Sher, the prosecution’s approach boils down to “have the jury just weigh all the evidence—both aggravators described by statute and any other evidence prosecutors can dig up—and see what penalty results.”  Well, that is a clear violation of the Supreme Court’s ruling in Stringer v. Black, argues Kammen.  Aggravating factors must be specifically defined in law, and not at all vague.  And yet Sher’s argument suggested a put-it-all-in-there-and-see-what-comes-out sort of process; that much is clear from his reliance on RMC 1001, and its language about “evidence” of aggravation.

Hold on, says Judge Pohl: aren’t aggravating factors limited, under RMC 1004(c)?  So long as the prosecution puts on evidence relating to those, then Kammen’s problem scenario simply won’t come to light.  Fine, says the defense lawyer, but such evidence must be narrowly tailored; and again, in his view, Sher and company apparently plan to sweep quite broadly.   This last bit is apparently illuminating for Judge Pohl.  He says he draws a distinction, between determining which kinds of aggravation evidence are admissible, on the one hand; and which sorts of aggravating factors lawfully may be lawfully alleged in a military commission, on the other. Court and counsel push a bit further on this, before Kammen circles back: the aggravators here are unlawful, and must be struck.  Granting of the defense’s motion would also dispose of any factors-versus-evidence problem—but, Kammen says, we can address any residual problems down the line to the extent necessary.  The lawyer’s final words comprise a broadside against commissions rules: the animating idea behind them he says, was to create a “death factory.”  The goal was not fairness, but a result antithetical to modern Eighth Amendment jurisprudence.   Read more »

2/21 Motions Hearing #8: On Grand Juries and Global Norms

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Friday, February 21, 2014 at 2:08 PM

Here is Air Force Maj. Allison Daniels, presenting AE183. Her motion seizes on the lack of grand jury indictment in this capital military commission case.  That’s contrary to the Eighth Amendment, in the defense’s view.

The charges here were the product of a single individual’s discretion.  Well, that’s not good enough for the grand jury.  Structurally, it is the law’s sole protection against vindictive, politically motivated justice, argues Daniels. There’s an analog to the grand jury in the military system, of course: investigation under Article 32.  But there’s no analog down here at Guantanamo.  Thus she asks Judge Pohl to invalidate the capital referral.

No, don’t do that, argues Lt. Bryan Davis.  The prosecutor notes the directly contrary authority confronting the defense: Quirin.  The infamous case takes grand jury rights off the table, entirely, so far as concerns the Fifth and Sixth Amendments.  Sure, Quirin isn’t an Eighth Amendment case; but why would the punishments amendment also contain an implicit grand jury requirement, given the subject’s explicit treatment elsewhere in the Bill of Rights?  No court has ever held this.  And small wonder: doing so would give detainees greater rights than American servicemembers.  Seemingly in the abundance of caution, Davis then swiftly ticks off the procedural protections for capital accused—indictment after Convening Authority review, conviction beyond a reasonable doubt, punishment according to aggravating and mitigating factors, and so on.  (The MCA, he adds, calls for more aggravation in capital cases, than federal courts do.)  The prosecutor ends where he began: this motion is resolved by Quirin, full stop.

No reply; AE183 is submitted.   Read more »

2/21 Motions Session #7: AE180, Part Two

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Friday, February 21, 2014 at 1:58 PM

Before lunch, we were discussing the lack of narrowing provided by Rule for Military Commission 1004.  According to Al-Nashiri’s attorney, Richard Kammen, the rule broadens the availability of capital punishment.  But the law insists instead upon the narrowing of that possibility.  The unconstitutional defect—as the defense explains in motion AE180—requires the dismissal of capital charges in this case.

Judge Pohl asks about evidence of aggravation, which the prosecution plans to offer.  That still won’t suffice, given the lack of narrowing; as Kammen explains, the idea of death penalty law is “guided discretion,” whereby the panel can make an informed moral judgment. But that’s impossible given the background rules, whatever proof the prosecution may present.  He proceeds along similar lines, each time returning to the leitmotif: broadening is unlawful, and countenanced by the commission’s procedures.

But Justin Sher says there is narrowing, and indeed, two times over in a commission case—once at the penalty phase, and then again at sentencing.  The members don’t touch on the 1004 aggravating factors until after finding the accused guilty beyond a reasonable doubt of this or that offense.  And it gives Sher precisely zero pause, that the Military Commissions Act makes all homicide crimes death eligible; again, the panel gets to winnow down from the maximum penalty in each case, both by deciding guilt and afterwards by deciding punishment, through application of various factors. He adds that the legislature has done some narrowing too, in the Military Commissions Act, by taking not-death-eligible homicides off the table to begin with.  Some more back and forth follows along these lines, and Sher concludes.

Kammen stands to reply.  Again: every crime that involves a person’s death in military commission, because of the aggravators and other things, conceivably may lead to the detainee’s execution.   death.  That’s very much different than civilian courts and courts martial.  Sher’s effort to suggest narrowing thus strikes Kammen as arbitrary; at least some offenses here, if charged elsewhere, wouldn’t theoretically give rise to a death sentence.  Really, the penalty structure isn’t about the crimes charged.  Instead it has to do, in Kammen’s view, with the identity of the accused; citizens don’t end up in military commissions, after all.  He hammers home is core point: not every defendant in the jurisdiction can face death, under law.  But that’s precisely what’s going on here.

2/21 Motions Hearing #6: AE180, Part One

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Friday, February 21, 2014 at 12:27 PM

AE180 is our motion.  Richard Kammen presents it on Al-Nashiri’s behalf.  The gist: the charges in this case shouldn’t have been referred capital, because the Military Commissions Act’s sentencing scheme offends the Eighth Amendment and other authorities. This system is “fundamentally flawed,” says the detainee’s Learned Counsel, for it imposes punishments that are “cruel and unusual.”

Elaborating, Kammen employs visual aids.  The defense lawyer understands the Constitution as mandating a sort of pyramid structure, which we see displayed on the grainy Fort Meade screen.  At the polygon’s broad bottom is a seemingly big number, of all violent deaths in a jurisdiction; at the top we find a much smaller number, of cases where death was imposed for capital homicide, and an appellate court affirmed the punishment.

The idea is plain enough: the law insists upon a constant and stringent narrowing, both of death-eligible crimes and aggravators supporting death for those crimes. But we don’t get that in commissions, Kammen claims; to the contrary, commissions take a vastly broader view of both offense eligibility and aggravation—the latter being the subject of AE180.  Wait, says Judge Pohl: Congress has to allow for at least some non-capital homicides in the Military Commissions Act, in order to pass muster?  Yup, answers Kammen, but there are only capital homicides in play these days. The court and counsel talk about this for some time, mostly to clarify Kammen’s position.  In his view, Guantanamo aggravators are so broad, that death is a realistic sentencing option in almost every homicide case.

We’ll break now for lunch.

2/21 Motions Hearing #5: Hazarding a Vessel, and Perfidy, and Death

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Friday, February 21, 2014 at 12:25 PM

Debated now: AE176, a defense motion to knock out the capital referral of Hazarding a Vessel and Perfidy charges against the accused.

Those simply are categorically less deserving of punishment by death, says Al-Nashiri lawyer CDR Brian Mizer, than the offense of premeditated murder.  Mizer mentions some precedent, which has required substantial participation in the killing of another person to sustain a death sentence.   The court wonders about a remedy: he’ll instruct the members, come time, about the maximum possible penalty, under all convicted offenses.  So if there’s a death-eligible offense in there—again assuming conviction—what does it matter if Hazarding and Perfidy aren’t death-eligible, as the defense claims?  Mizer says he wants an instruction to members, one calling for active, substantial participation, and a reckless indifference to human life, in circumstances causing death.  Again, not every homicide is deserving of the death penalty, Mizer argues; only the most serious and deserving of murders count, under Supreme Court rulings.  The instructions should make that clear.

Justin Sher argues in rebuttal, challenging the defense on two fronts.  First, he doesn’t think capital punishment is per se excessive, for Hazarding and Perfidy.  Both are serious war crimes, and Congress thinks death is an option, when such crimes result in death. Interestingly, Hazarding and causing death will make a defendant death eligible in civilian court, argues Sher.  And the elements at issue there are roughly the same as those here.  Ditto the Uniform Code of Military Justice; the Court of Appeals for the Armed Forces has recognized that willfully hazarding a boat can be referred capital, when victims die.  As for perfidy, it “changes war for the worse.”  The Cole attack lead to the deaths of U.S. servicemen.  Congress thus reasonably concluded that Perfidy can be punished capitally, under those circumstances.

At any rate, there isn’t a per se imposition of capital punishment for either offense challenged here.  At trial, the prosecution will have to prove, among other things, the deaths that resulted from the crimes, as well as the accused’s substantial participation and moral guilt.  And there’s good reason to think the government will succeed in this respect; after all, the accused acquired equipment, helped to plan, and trained people, among other things, according to Sher.  He sits. Read more »

2/21 Motions Hearing #4: Hamdan, Ex Post Facto

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Friday, February 21, 2014 at 12:19 PM

In AE201, the defense seeks “Hamdan” credit for Al-Nashiri’s period of confinement, and thus to invalidate military commission rules that bar the court from doing so after a sentence has been imposed.  Judge Keith Allred famously did this some years back, by reducing the sentence imposed on Bin Laden’s former driver, by crediting him for much of his longtime detention at Guantanamo.  But the Military Commissions Manual took the option off the table, afterwards—and, according to AE201, violated the federal Ex Post Facto clause.

Judge Pohl asks CDR Brian Mizer about the legal requirement of credit for pre-trial confinement.  The source is due process, answers Al-Nashiri’s attorney.  His argument is brief, but boils down to this: Mizer wants Judge Pohl to go the Allred route, and preserve the court’s power to credit Al-Nashiri for a long stay in Guantanamo, come sentencing time.  The issue is ripe for litigation now, moreover, given the looming trial; Mizer urges the court not to keep kicking this and other case-critical cans down the road.

Lt. Bryan Davis picks up where Mizer left off.  No, this issue isn’t ripe, as we’re a good ways off from trial, and even a longer way off from any sentencing.  (When asked, Davis says the issue would be teed up upon conviction.)  At any rate, Ex Post Facto issues only come into play when there’s a change in the legal rules that existed at the time of an accused’s conduct; and here, no rule has ever established a law of war detainee’s subsequent entitlement to pre-trial confinement credit, upon conviction of a war crime.  Sure, the defense cites some federal civilian precedents here and there, but the statutes involved in those cases specifically exempt military courts from their application.  Unless and until the defense can drum up some authority for its Hamdan Credit Theory, it cannot carry its burden.  Davis lastly notes that Judge Allred’s determination was unique to him; and at also that, in any event, Allred partially denied Hamdan’s request for some pretrial confinement credit, to the extent the request implicated law-of-war detention during hostilities.  Davis is done.

Back to Mizer and to due process.  It’s about fairness, he says.  There was a constitutional right to pretrial confinement credit at the time of charging in this case; Al-Nashiri still holds that right now.  The no-credit rule should therefore be invalidated, in his opinion.

2/21 Motions Hearing #3: Death Formulas and Aggravators

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Friday, February 21, 2014 at 12:13 PM

The next stop on our little Ex Post Facto Tour 2014 is AE179.  The defense theory here is roughly the same as earlier, but this time Al-Nashiri’s lawyers focus on capital sentencing.  In 2002, courts martial employed a more rigorous body of rules for death sentences, in the view of Al-Nashiri’s lawyers; but Congress opted for a less rigorous setup later, after Al-Nashiri’s capture, in the Military Commissions Act.  Thus the Ex Post Facto problem.

The relevant court martial rule—RCM 1004—used eleven aggravators, which could support a death sentence in only the most egregious of cases. Merely two of these courts martial aggravators arguably implicated Al-Nashiri’s charged conduct. Contrast this to the relevant commission rule, which employs a different aggravation scheme, suggests (to Mizer’s eye) the application of six aggravating factors, and thus also ups the likelihood of a death sentence.

CDR Brian Mizer advances this argument, citing the Peugh case. This dealt with federal sentencing guidelines for fraud.  And the issue was roughly the same, give or take, as that presented in the defense’s motion: the sentencing range for fraud had been increased unlawfully, after the defendant’s offense.  Judge Pohl asks a little about the details behind Peugh; Mizer explains them, noting that the adjustment in that case didn’t alter the elements of the offense, but instead affected a formula used to punish the conduct involved.

Mizer tags out and prosecutor Maj. Evan Seamone tags in.  The latter notes a key concession: the defense acknowledges that, in 2002, the courts martial rules allowed for the possibility of capital punishment in circumstances akin to Al-Nashiri’s case. The accused thus was on notice then about the risk of being convicted and put to death for committing his various crimes; there’s no Ex Post Facto issue.  The military judge observes that there are mandatory minimums in courts martial.  That is true, says Seamone, but there’s no similar mandatory minimum arrangement in commissions.  The lawyer distinguishes between the statutory scheme employed at Guantanamo and the sort of formula that concerned the Peugh court.  The former vests the panel with considerable flexibility.  In fact, the panel is directed not to weight any one sentencing factor; members can consider any mitigating factors they wish.  They need not vote in favor of any aggravators.  Put a different way, there really isn’t a preference for death baked into the system, as the defense has argued.  A bit more, and Seamone is done.

The addition of aggravators—from two to six here—is what matters to Mizer.  If you add on sentencing enhancements, then you ratchet up punishment.  That’s the issue in Peugh, even if that’s not readily visible to non-experts in federal sentencing like him.  As it happens, Peugh also disposes of Seamone’s claim about panel discretion in sentencing.  The case directly supports the proposition that making a punishment more likely, after the fact, runs counter to the Ex Post Facto clause.

Wrong, Seamone argues.  You can’t analogize commission sentencing and federal sentencing, given the latter’s use of byzantine sentencing formulas. Military rules deliberately avoid such formulas.  We just don’t have that sort of system, your honor.  He sits.

2/21 Motions Hearing #2: Death For Certain Offenses

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Friday, February 21, 2014 at 12:04 PM

Let’s push on to AE177, another Ex Post Facto motion.  This time around, Mizer and company ask Judge Pohl to take the death penalty off the table, so far as concerns the offense of “intentional murder or conduct evincing a wanton disregard for human life.”  Again, the lawyer emphasizes the 2002 Courts Martial rules.  At the time, these allowed a maximum penalty of life without parole for such crimes.  It’s roughly the same play as before: the Military Commissions Act, in Mizer’s view, thus jacked up punishment for Al-Nashiri’s crimes after the fact, all of his allegedly criminal actions having occured between 1998 and 2002.

The relevant commission rules derive in part from Geneva Convention principles, says Al-Nashiri’s attorney.  And the latter tightly regulates the imposition of death as a punishment, restricting it to espionage and a few other offenses.  But “intentional murder” isn’t on that list.   The court interrupts: are you saying courts martial can’t impose death, either?  No, says Mizer.  His position is that Courts Martial authority is cabined by American Eighth Amendment jurisprudence, as well as Ex Post Facto principles.  Here, we’re concerned chiefly with the latter.  On that point Mizer emphasizes that, under Courts Martial,  in 2002 death was not available as a punishment for murder that was not premeditated; or for felony murder. And by adding death as an option for more murder offenses, afterwards, the Military Commissions Act inarguably increased punishment—and ran afoul of the federal Ex Post Facto clause.

The prosecutor Maj. Evan Seamone: if, in 2002, a death sentence was theoretically available for the offenses challenged; and if it is still available now; then there’s no Ex Post Facto problem.  That’s exactly the situation here, judge. Domestic and international law always have allowed commissions to impose death as a punishment for serious war crimes causing death.  Starting with the latter, take a look at Geneva III.  Its commentary makes clear that the treaty doesn’t abolish the death penalty, or significantly cabin its application by member states.  Thus, even as far back as 1949, capital punishment has been available, when an accused commits a war crime and causes the death of one or persons.  Customary international law is along similar lines, Seamone says, and incorporated in longstanding principles of American military law.

The important thing, Mizer argues in reply, is this: Article 18 of the Uniform Code of Military Justice, which provide Courts Martial with law of war jurisdiction.  Its provisions are clear.  The government interprets them as allowing for a “death is default” approach, whereby the ultimate penalty is in play whenever an offense is “serious.”  But a simple label, however, doesn’t get the prosecution over the Ex Post Facto Clause.  Well, we haven’t yet seen death imposed for perfidy, or for hazarding a vessel, when victims have been killed; we haven’t seen death imposed for the offenses at issue in this motion, either.  There needs to be consensus about a penalty’s availability in the international community, before the government can proceed.  Seamone mentioned Geneva.  But international law didn’t stop in 1949, and still we have yet to see capital charges brought for the offenses described in Al-Nashiri’s charge sheet.  No surprise there, argues Mizer: a non-premeditated murder is categorically different than a murder, in which an accused is substantially involved, and the law recognizes the distinction.  The government must too, as it seeks to prosecute Al-Nashiri. Mizer finishes, and the motion is submitted.

2/21 Motions Hearing #1: Hearsay, After the Fact

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Friday, February 21, 2014 at 10:31 AM

It’s on again, y’all.  All parties are present, including Al-Nashiri.  Yesterday, Judge Pohl explains, a Rule 505(h) hearing was held, regarding the parties’ ability to make use of classified evidence in open court.  In light of that discussion, the court has determined that, lo, a closed hearing will be required. It will go forward tomorrow, occupy the entire day’s work, and obviously not be the subject of Lawfare coverage.

In AE167, CDR Brian Mizer asks the court to implement the Ex Post Facto clause—specifically, by giving effect to 2002 Courts Martial rules regarding hearsay.  (Al-Nashiri’s alleged offenses all occurred between 1998 and 2002.)  These were measurably tougher than rules handed down down the road by Congress, and applied these days in the commissions.  Thus Mizer’s challenge.

Al-Nashiri’s attorney cites, among other things, Calder v. Bull and Carmell v. Texas.  In the latter, the state had relaxed its hearsay regime, between the time of the defendant’s conduct and his eventual conviction—among other things by eliminating the requirement of corroboration by other evidence, for testimony by certain victims of sexual assault.  (The looser, more recent rule chucked the corroboration requirement for victims under 14.)  Well, the military commissions don’t require any corroboration, when the prosecution seeks to admit hearsay; the courts martial, on the other hand, were a different story back in 2002.  And bear in mind, Mizer says, there’s a lot of hearsay afoot in this case: boatloads of statements by as many declarants, some of them dead, according to prosecution filings.  A shift in the rules of evidence, meant to make it easier to convict, amounts to an Ex Post Facto no-no.  The Manual for Courts Martial, Mizer urges, provides the correct legal framework.   Read more »