Case Coverage: Military Commissions

11/17 Session #1: Article 5?

By Wells Bennett
Monday, November 17, 2014, 10:06 AM

The military judge, Capt. Keith Waits, calls our session to order.  All parties are present, including the accused.  That means a quick colloquy about Al-Hadi’s right to be present, the consequences of knowingly and intelligently waiving that right, and so on.  Does he understand the right to be here, and the risks of deciding not to be here?  Waits addresses the accused directly, and Al-Hadi answers that he does.

Housekeeping comes first: the military judge summarizes the outcome of a pre-trial conference, which (among other things) prioritized consideration of a legal motion by the defense, and to push back a dispute over physical contact by female GTMO guards. (The latter is the subject of a parallel but related discovery motion that must be handled before turning to the merits.) It also seems Judge Waits will confer ex parte with the government this afternoon, regarding classified material.

At any rate, we have our marching orders, and therefore turn to Al-Hadi’s legal motion: AE20, a bid to dismiss for lack of subject matter jurisdiction and to compel a status determination pursuant to Article 5 of the Third Geneva Convention. It falls to Lt. Col. Tom Jasper to argue the pleading; he insists that, although his side filed it, the government nevertheless bears the burden of establishing jurisdiction, and thus also should bear the burden on this motion here. The prosecution broadly agrees that, at the appropriate time, its side must demonstrate jurisdiction---but that, here specifically, the defense must demonstrate why it is entitled to have the case dismissed for want of an Article 5 hearing. Waits mulls this for moment, before concluding that Jasper and company bear the burden for present purposes.  (Clayton and company of course still bear the larger burden of proving jurisdiction at trial, says the military judge.)

Jasper rises and asks for dismissal of all charges, pending an Article 5 hearing before a so-called “competent tribunal” under Article 5 of the Third Geneva Convention.  That should have happened prior to referral but didn't, argues the lawyer.  Military commission jurisdiction is status-based, and only alien enemy unprivileged belligerents---people forfeiting protection under the law of war---are subject to trial under the commissions’ authorizing statute.  And yet Geneva presumes the protection of persons who fall into the enemy’s hands---those of the United States, in Al-Hadi’s case---pending ascertainment of status by a competent tribunal under Article 5. While it is true that a person must do certain things to ensure such protections---carry arms openly, and the like---it’s on the government to show, in the context of an Article 5 hearing, that Al-Hadi hasn’t done such things. And that simply hasn't happened here.

The absence is important, says Jasper, considering the Hamdan and Khadr cases.  In both, commission charges were dismissed because the government had not demonstrated jurisdiction by means of an Article 5 hearing, but instead sought to base jurisdiction on the government's unilateral declaration, during a Combatant Status Review Tribunal ("CSRT") that the accused was merely an "enemy combatant."  Jasper adds that the government’s claim, that Judge Wait’s military commission can do double-duty as a criminal forum and an Article 5 tribunal---is false.  Bottom line: no Article 5 tribunal, no commission trial, period. The court should dismiss the case pending Geneva-compliant review.

The baton passes to prosecutor Mikeal Clayton, who takes no issue with Jasper’s account of what the Genvea Conventions require on paper.  But he very much does take issue with Jasper’s apparent premise: that Al-Hadi was taken into custody within the context of an international armed conflict between parties to the Geneva Conventions, thus implicating Article 4 and 5 of the Third Geneva Conventions. On the contrary, the executive branch, judiciary, and Congress all agree with Clayton and disagree with Jasper on that score, he explains. Take Hamdan: the latter found the present conflict to be a non-international armed conflict, one governed by Geneva’s Common Article 3 only.  This article sets forth its own procedures regarding the judicial process afforded to detainees, sure---but those procedures don’t encompass the strictures of Articles 4 and 5, which Jasper cited. There’s accordingly little doubt here, the prosecutor claims: Al-Hadi isn’t entitled to any Article 5 proceeding, and the charges should not be dismissed.  Clayton also dismisses out of hand Jasper’s citation to Khadr---where the Court of Military Commission Review made perfectly clear that military commissions are competent to determine jurisdiction over a Guantanamo defendant.  The United States lastly will show plenty of evidence to establish in personam jurisdiction over Al-Hadi, come time.  (Clayton previews some of this: there’s a combat video of Al-Hadi; another Al-Qaeda video declares Al-Hadi to be a “hero” to Al-Qaeda’s cause; the accused also may have inculpated himself in an interview with the FBI.)  In the meantime, though, the commission comfortably may exercise jurisdiction as a prima facie matter.  The case should proceed.

One question: Waits asks Clayton about the effect, if any, of a prior Combatant Status Review Tribunal (CSRT) determination, that Al-Hadi is an “enemy combatant.”  The CSRT isn’t dispositive of jurisdiction under the Military Commissions Act, answers Clayton; the commissions' governing statute sets forth its own requirements. With that said, Clayton thinks the CSRT is part nad parcel of the needed proof that, throughout his detention, Al-Hadi has received all of the process to which he has been entitled. “So its some evidence towards the government’s burden?” asks Waits. That’s right, answers Clayton.

Over to Jasper for rebuttal. He blasts the CSRT determination as woefully inadequate: all we know, we know from a one-page document announcing the CSRT’s conclusions, your honor. The defense (and thus the court) don’t know anything meaningful at all about the evidence offered or procedures employed in the CSRT---despite the defense’s requests in discovery.  For his part, Clayton believes that the United States has provided CSRT materials in classified discovery; the information may yet be forthcoming.