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 to discriminate against a specific religion, that is the Muslim religion." Judge Spath interrupts him: no prior Court has said the MCA is unconstitutional on free exercise grounds, so "how can I step in and say, as a process it's completely unconstitutional at this point?" Major Hurley replies that the link between the MCA and religious animus is inextricable: the legislation was passed in a background of anti-Muslim fervor, and consequently Guantanamo now exclusively holds Muslim prisoners.
Lt. Davis is back at the podium once more for the prosecution. "Your Honor, the Military Commissions Act does not criminalize religion. It criminalizes actions, it criminalizes violations of the law of war by unprivileged enemy belligerence." The MCA is facially neutral, and the basis of the law is not to punish believers of Islam but to punish violators of the laws of war. But is the act being applied in such a way that targets Muslim men for selective prosecution? The prosecution says no: the legislative history to that effect is "merely five statements" from the 535 Members of Congress, and the fact that we're currently in hostilities with Al Qaeda and Al Qaeda members are Muslim doesn't mitigate the basic neutrality of the statute.
Major Hurley replies that a judicial decision, Lakumi, is instructive: there, the Supreme Court found that animus need not be written into the law to exist, it just needs to exist in fact. And though "we can imagine there may be some circumstances under which other members, adherents to other beliefs may ultimately be tried here in Guantanamo Bay, but the proof is in the pudding."
Finally, the proceedings briefly touch on a battery of defense motions, AE296-301. The series raises variations on a common legal argument. Thus, speaking through Major Daniels, the defense insists that charges should be dropped because "the statute of limitation in place at the time of the commission of the acts alleged in those charges and specifications was Article 43 of the Uniform Code of Military Justice, and that has a statute of limitation of five years. "
Not so, says prosecutor Mikeal Clayon in rebuttal. He rises for the government and states that "[t]he central premise here is that the statute of limitations for one body of law does not, except for limited circumstances, dictate a statute of limitations of another body of law, and this is simply not one of those limited circumstances." In any event, because violations of the laws of war tend to have enormous magnitude and far-reaching effect, the absence of a statute of limitations for violations of laws of war is a customary norm dating back to Nuremberg.
And that is that---for today. Judge Spath says the parties will address motions AE287 to 292 during the next session, tomorrow. He then recesses the proceedings.