Our day concludes with a debate over AE173.
The gist of this motion, says Army Maj. Thomas Hurley, is that Section 948i(b) of the Military Commissions Act is unconstitutional as applied to Al-Nashiri. This provision sets rules for detailing members to military commission panels.) That raises the question of his client's individual rights under the Constitution. And on that point, the lawyer cites Boumediene’s multi-factor analysis. It dealt, of course, with habeas jurisdiction; but for Hurley, the famed Supreme Court ruling arguably should apply to the Sixth Amendment right to a civilian jury trial, too, and invalidate the military member selection rules established in 948i(b).
But before Hurley’s gone far, Judge Pohl asks about the effect of granting the lawyer’s request. Doing so would take a commission prosecution off the table, right? It would, says Hurley. But civilian trials for Guantanamo guys are also off-limits by statute, right? Right. So if you win, the court goes on, there won’t be any trial? A doubting military judge also notes that Boumediene hasn’t yet been shifted, away from habeas and towards particular constitutional rights. Hurley acknowledges this, but nevertheless thinks that Judge Pohl should go that route---and continues to explain why Boumediene weighs in favor of applying the Sixth Amendment’s jury trial mechanism. The case spoke of “practical obstacles;” well, there’s no practical reason not to have civilian jurors in this matter, Hurley argues. Judge Pohl puzzles over how this would work, given that travel to Guantanamo is very much a tall order, practically. Seeking to calm things, Hurley explains that he’s merely seeking to have the provision held unconstitutional---but not to create a new civilian-jurors-in-Guantanamo process for commissions. The pair then banter a bit---somewhat puzzlingly to the skeleton crew up here at Fort Meade---about the enforceability of a civilian jury draw, on a military base in Cuba. Hurley concludes, emphasizing the length of Al-Nashiri’s custody. That distinguishes him from enemy captives, whose rights-based challenges failed.
Along comes Lt. Davis. As before, he says the issue is simple. It boils down to this: the accused here get all the jury rights of a servicemember prosecuted in a court martial. And these have been sustained by courts. Davis ticks of various courts martial procedures---regarding members’ oaths, challenges for cause, and so on---noting that commission procedures are either identical or very similar to their courts martial counterparts. And he adds that the minute differences are in fact favorable to the accused; death sentences, for example, require more votes from panel members in commissions than in courts martial, Davis argues. Having all this in mind, there’s no reason to traipse into Boumediene-land, and to start talking about the application of constitutional rights at Guantanamo. Indeed, avoidance doctrines cut against that approach. To be sure, Davis underscores, Quirin makes clear that the accused here have no Sixth Amendment jury trial rights.
That brings our day to the close. There will be no open session tomorrow, but we’ll pick up Friday. (Of course, Lawfare will be in the house tomorrow, for the much-anticipated arraignment in a closely related commission case, Al-Darbi.)