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Category Archives: Terrorism Trials: Military Commissions

Article III and the al Bahlul Remand: The New, New NIMJ Amicus Brief

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Monday, August 18, 2014 at 12:59 PM

On July 14, the en banc D.C. Circuit ruled in al Bahlul v. United States that “plain error” review applied to Bahlul’s ex post facto challenge to his military commission convictions for conspiracy, material support, and solicitation–and then upheld the first of those charges under such deferential review (while throwing out the latter two). One of the potentially unintended consequences of the Court . . .
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9/11 Case Motions Hearing: 8/14 Session

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Friday, August 15, 2014 at 11:28 AM

Working off transripts, Lawfare’s Matt Danzer has a rundown of yesterday’s pre-trial proceedings in the 9/11 case.  We’ll post his dispatches in our “Events Coverage” section, while linking to them as they come in throughout the day.  Keep your eye on this space. 8/14 Motions Session #1: Conflicts, Conflicts Everywhere 8/14 Session #2: On Severing Al-Hawsawi . . .
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9/11 Case Motions Hearing: August 13 Session

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Thursday, August 14, 2014 at 12:43 PM

A reminder: Lawfare won’t be traveling to Fort Meade to take in, almost live and via CCTV broadcast, the rest of this week’s pretrial hearing in the 9/11 case.  We will thus resort to our backup coverage format, by posting digests of each prior day’s events in our “Events Coverage” section. We thus commence with Matt . . .
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Al-Nashiri Order Dismissing Charges Relating to French Oil Tanker

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Thursday, August 14, 2014 at 10:50 AM

We flagged news coverage of this important military commissions ruling earlier, when the item in question was not yet available.  You’ll now find the real thing here (and here). The military judge’s order seemingly came down to this: the prosecution had asserted—but ultimately did not submit proof of—facts that, in its view, supported military commission jurisdiction over charges regarding . . .
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This Afternoon’s Hearing in the 9/11 Case

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Wednesday, August 13, 2014 at 1:54 PM

A reminder, and a little coverage note: this afternoon will see a pre-trial hearing in the case against Ramzi Binalshibh—one of five men charged with plotting the 9/11 attacks. Unfortunately Lawfare won’t be able to take in those proceedings via Fort Meade’s Closed Circuit TV facility—but we will post a digest of the afternoon’s most significant events, once . . .
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Al-Nashiri Case: French Oil Tanker Charges Dismissed

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Monday, August 11, 2014 at 2:49 PM

That’s the word from the Miami Herald’s Carol Rosenberg. I haven’t yet seen the ruling, but gather from the story that the dismissal had to do with the absence of certain evidence—rather than the boundaries of the commission’s jurisdiction.  (The fit—or the lack thereof—between the latter and the acts alleged has been an important and recurring feature of the . . .
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8/11 Session #1: Severance, Reconsidered

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Monday, August 11, 2014 at 10:25 AM

The military judge, Army Col. James Pohl, takes the bench.  Only one accused is present: Ramzi Binalshibh, whose case the court recently separated out from that against the other four accused in the 9/11 case.  His lawyers are there too, including Jim Harrington and LCDR Bogucki. The court opens by summarizing the state of play, . . .
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9/11 Case Motions Hearing: August 11 Session

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Monday, August 11, 2014 at 9:04 AM

Today your correspondent will observe, via CCTV, pre-trial proceedings in the case of United States v. Ramzi Binalshibh.  That’s the prosecution against only one of the five men accused of plotting the 9/11 attacks.  The military judge has severed Binalshibh’s case, for the moment, from that against the other four; today, military prosecutors will ask the . . .
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Chief Prosecutor Statement on This Week’s Hearing in the 9/11 Case

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Monday, August 11, 2014 at 5:00 AM

You can find the whole thing here, and the opening paragraphs below. And that’s a good a reminder as any, that today Lawfare returns to Fort Meade, for almost-live-blog coverage of pre-trial proceedings in United States v. Mohammed et al.   From the statement: Good evening. On the eve of continuing pre-trial sessions this week, I wish to . . .
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Chief Prosecutor Statement on this Week’s Hearings in Al-Nashiri

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Thursday, August 7, 2014 at 3:23 PM

Here y’are.  Brig. Gen. Mark Martins, the Chief Prosecutor at Guantanamo, opens his statement as follows: Good afternoon. This Friday will mark sixty-nine years since the signing of the London Agreement and Charter by representatives of the United States, the Soviet Union, the United Kingdom, and France, thus establishing the International Military Tribunal for the trial . . .
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8/6 Motions Hearing #2: MRIs and Skype

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Thursday, August 7, 2014 at 10:19 AM

When the court returns from recess, the parties move into argument on AE277, the defense’s motion for a judicial order compelling an MRI of Al-Nashiri’s brain to determine if he has brain damage. The defense presents two lines of argument. First, Rick Kammen, Al-Nashiri’s Learned Counsel, says his client needs the MRI for medical treatment, and . . .
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Al-Nashiri Motions Hearing: August 6 Session

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Thursday, August 7, 2014 at 9:48 AM

This week’s pre-trial session in United States v. Al-Nashiri came to a close yesterday; courtesy of new Lawfare contributor Zoe Bedell, you’ll find summaries of the day’s key developments in our “Events Coverage” section, and links to those summaries below.  Enjoy. 8/6 Motions Hearing #1: Tu Quoque 8/6 Motions Hearing #2: MRIs and Skype

8/6 Motions Hearing #1: Tu Quoque

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Thursday, August 7, 2014 at 9:44 AM

Judge Spath begins today’s hearings noting that Al-Nashiri is not present. The court first hears testimony from the Guantanamo Staff Judge Advocate who had received Al-Nashiri’s waiver, Captain G, who walks through the standard certifications that the waiver was voluntary. The proceedings quickly turn contentious. Learned Defense Counsel Richard Kammen then stands and questions Captain . . .
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8/5 Motions Hearing #4: On the MCA’s Constitutionality and Statutes of Limitation

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Wednesday, August 6, 2014 at 8:16 PM

Judge Spath then moves to AE 295, a defense filing and the penultimate item on the agenda.  It’s a constitutional broadside against the commissions’ authorizing legislation. Major Hurley rises for the defense and asks that all charges be dismissed against al-Nashiri, “because the Military Commissions Act of 2009 is unconstitutional, specifically because it is designed . . .
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Programming Note: Military Commissions Coverage This Week

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Tuesday, August 5, 2014 at 9:03 AM

A little update from Lawfare HQ, regarding our remaining coverage of this week’s pre-trial motions hearings in the military commission case of United States v. Al-Nashiri: circumstances have conspired to keep your correspondent away from live-blogging the proceedings today, tomorrow and Thursday. As a consequence, and per our usual practice, Lawfare will await the issuance of transcripts each . . .
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Al-Nashiri Motions Hearing, August 4 Session

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Monday, August 4, 2014 at 8:57 AM

Today your correspondent returns to Fort Meade, to take in CCTV-broadcasted, pre-trial hearings in the military commission case of United States v. Al-Nashiri.  The hearing gets underway at Guantanamo at 0900. As always, we’ll post dispatches on the day’s events, in our “Events Coverage” section.  You’ll find links to those posts below, too. 8/4 Session #1: . . .
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Chief Prosecutor’s Statement on this Week’s Hearing in Al-Nashiri

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Sunday, August 3, 2014 at 10:45 PM

The Chief Prosecutor’s statement regarding the week-long hearing, which gets underway tomorrow, can be found here.  It opens: I wish to report that observers of military commissions, including family members of those killed in terror attacks, have expressed keen interest in last month’s decision by the U.S. Court of Appeals for the District of Columbia . . .
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“Omar Khadr’s Lawyers in U.S. Threatened Over Release of Court Documents”

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Friday, July 25, 2014 at 4:59 PM

That is the headline to an article in the Winnipeg Free Press, which I came across today. The piece concerns recent proceedings in Omar Khadr’s (stayed) appeal before the Court of Military Commission Review.  It opens thus: TORONTO – A U.S. military commission court is threatening to strip the security clearance from Omar Khadr’s Pentagon-appointed lawyers as part . . .
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Al Bahlul and Article III: A Reply to Marty and Steve

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Wednesday, July 16, 2014 at 4:00 PM

Marty and Steve’s post on al Bahlul (and Steve’s post here) is right that the D.C. Circuit’s decision should not be read as a green light for inchoate conspiracy charges in military commissions.  However, Marty and Steve go off course in magnifying the modest issues remanded to the panel in al Bahlul, particularly the impact . . .
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A Brief Reply to Jack and Peter on Al Bahlul

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Wednesday, July 16, 2014 at 1:51 PM

This morning, Marty Lederman and I have posted a detailed analysis of Monday’s en banc D.C. Circuit decision in al Bahlul—and what it portends for the future of military commissions, especially with respect to offenses not recognized as international war crimes. As Marty and I conclude, “Monday’s decision . . . underscores the serious constitutional . . .
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