Terrorism Trials: Military Commissions

2/19 Motions Session #3: Unlawful Influence

By Wells Bennett
Wednesday, February 19, 2014, 12:02 PM

AE197 is up next.  That’s the defense’s motion to dismiss for unlawful "command" influence.  A gentle correction from the bench: the military judge suggests, and defense attorney Army Maj. Thomas Hurley agrees, that the statutory term used in commissions in fact is different, and somewhat broader: “unlawful influence.”  At any rate, the gist is this: Hurley cites a long string of remarks by presidents and other senior U.S. government officials---about Al-Nashiri, the Cole attack, and Guantanamo detainees generally---as evidence of an illegal effort to convict Al-Nashiri in advance, and to pressure the Convening Authority into referring capital charges.

Judge Pohl stops Hurley almost before he gets going in earnest, and wonders about congressional and executive branch awareness of these extrajudicial statements. Was the idea to set up a new court but then dismiss the cases?  That seems weird.  For his part, Hurley thinks that the President and Congress certainly would expect hearings into unlawful influence where appropriate, and tailored the commissions’ authorizing law accordingly.  Certainly so, considering the statements by President Bush about Al-Nashiri, for example.  Hurley reads some of these aloud, emphasizing that the White House seemed to inculpate Al-Nashiri, in conclusory fashion, as early as 2002. Presidents Bush and Obama also made explicit and wide-ranging comments about detainees generally; the routine reiteration of the guilt of these individuals could not help but influence the Convening Authority’s decision to refer charges, according to Hurley.  Bear in mind that Hurley need only show “some” evidence of unlawful influence, under law; after that, the burden shifts to the government to disprove such influence entirely.

Here’s Hurley again: the government’s claims---that there’s no unlawful influence here, and that any such influence could be cured during selection of the members---are both unfounded. The former is obviously wrong, given what Hurley described earlier.  And the latter taint can’t be cured either, he says. The United States all but guaranteed unlawful influence, when it proclaimed Hurley’s client guilty without any process in 2002. And the prosecution must live with that choice.  Winding up, the defense attorney emphasizes that only one remedy can cure the wrong he has articulated. (For his part, Judge Pohl wonders whether knocking out the possibility of capital punishment might suffice.)  The lawyer urges Judge Pohl once more to dismiss the charges against Al-Nashiri.

Over to Lt. Byran Davis, a prosecutor. For the defense challenge to succeed, he argues, it must demonstrate more than just “influence in the air.” But the defense can’t even do that, and satisfy the “some” evidence standard.  For there’s no evidence that the Convening Authority here was aware of the statements noted by Hurley and company; or that those statements actually affected the Convening Authority’s judgment.  (Court and counsel separately discuss the direction of the bad influence alleged by defense lawyers; both the Convening Authority and future panel members seemingly were impacted by prejudicial public remarks, according to the defense theory.)   Thus the defense’s invitation to have the commission speculate about hypothetical influence.  The speculation is even more farfetched in the commissions, which employ a unique and robust structure to ensure the independence of the convening authority.  At Guantanamo, the Convening Authority is appointed by the Secretary of Defense; not so in other military contexts, where convening authorities may be subordinate officers, and thus arguably more susceptible to bad influence from higher ranks.   

The Court wonders: well, if SecDef appoints the Convening Authority, then wouldn’t remarks from political officials be just as likely to skew convening officers’ determinations as in traditional settings?  Davis thinks not, again noting the absence of evidence in this case.  Contrast this to situations where courts martial have found unlawful command influence---like where trial counsel conspired with a staff judge advocate to have a military judge recused.  Or where a convening authority backed off on a recommendation of non-judicial punishment, after a higher-ranked officer pushed him.  The court asks whether the burden has shifted to the prosecution, to disprove the existence of unlawful influence; Davis’s unsurprising answer is no, given the lack of even “some” evidence of unlawful influence in the record.  The prosecutor explains that unlawful influence requires a public official’s specific intent to influence an ongoing proceeding---an impossibility, given that all remarks here antedate Al-Nashiri’s prosecution.  Sure, the defense claims the contrary, but again, it hasn’t put forward any proof.  Public officials are not, Davis says, precluded from commenting on matters of surpassing public significance.  More kickers: President Bush---who uttered the remarks that most concern the defense---is no longer in office.  And DoD policies have long directed the Convening Authority to make an independent judgment, and thus also not to rely on extrinsic remarks by political appointees.  A few words more---about the famed Calley case, among other things---and Davis concludes.

Some reply argument follows, from Hurley.  First: it is one thing to make an allegedly “neutral” remark, as President Nixon did during the Calley case regarding My Lai.  But that’s a far cry from the unequivocal, inculpatory stuff President Bush uttered about Al-Nashiri---the former said the latter did it, period.  Secondly, Hurley insists that the defense has met its burden, and that the prosecution cannot carry own, higher burden of disproving influence.  Still, he says, the defense would welcome the calling of the Convening Authority as a witness. Hurley also disparages the prosecution’s supposed evidence of non-influence---press releases and the like.  Such material pales in comparison to the inflammatory statements made by the President.  The latter sways public opinion, Hurley argues; not so the former.  The defense attorney once more asks for dismissal, and sits.

AE197 is under advisement.  We’re in lunch recess until 1300.