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Category Archives: Event Coverage: Military Commissions

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 . . .
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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. . . .
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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 . . .
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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 . . .
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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 . . .
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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, . . .
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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 . . .
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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 . . .
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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 . . .
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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 . . .
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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. . . .
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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 . . .
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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. . . .
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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 . . .
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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 . . .
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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 . . .
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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 . . .
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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 . . .
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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 . . .
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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, . . .
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