Terrorism Trials: Military Commissions

An Amended Hearing Agenda, and More Conspiracy Charge News in the 9/11 Case

By Wells Bennett
Tuesday, January 22, 2013, 12:14 PM

Fresh from a security scrub are these two items in United States v. Mohammed et. al.: first, an Amended Docketing order, wherein Judge James Pohl excises two previously scheduled defense motions to compel discovery from the agenda for next week's hearing, and adds in five other defense requests---including one to compel discovery related to "White House and DOJ Consideration of the CIA Rendition, Detention, and Interrogation Program."

Not on the updated schedule: the defense's motion to dismiss the now-famous conspiracy counts against the five accused---which, according to defense attorneys, the prosecution reportedly will not oppose.  This brings us to our second item.  Ammar al-Baluchi's attorney, James Connell III, has issued this statement. In it, Connell reiterates that the government will press on with its attempt to withdraw the conspiracy counts, notwithstanding the Convening Authority's recent decision to the contrary; and sets forth a timeline of events relevant to the conspiracy.   Here is the text: 

In a filing dated January 21 (AE107A Sup.), the prosecution has stated that it will maintain its position on the 9/11 conspiracy charge despite the Convening Authority’s refusal to withdraw the count. This news follows reports that the Department of Justice will not appeal the decision in United States v. Hamdan (Hamdan II) to the Supreme Court.

“One of the fundamental flaws of the military commissions is that the Convening Authority has both prosecutorial and judicial duties,” said James Connell, counsel for accused co-conspirator Ammar al Baluchi. “The Convening Authority’s insistence on prosecution of the conspiracy charge at the same time it controls defense funding and hand-picks the panel of military officers to hear the case illustrates this conflict of interest.

The timeline of this controversy follows:

10/12/12 Defense files motion (AE091), challenging the dual prosecutorial and judicial role of the Convening Authority.

10/16/12 D.C. Circuit Court decides Hamdan II, holding that material support for terrorism is not a war crime. Al Bahlul, which presents the question of whether conspiracy is a war crime, remains pending in the same court.

11/2/12 Defense files motion to dismiss (AE107), arguing that conspiracy is not a war crime under Hamdan II.

11/7/12 Prosecution seeks (AE107-1) and obtains (AE107-2) an extension of time to respond to the defense motion regarding conspiracy until five days after the DOJ files its supplemental brief in al Bahlul.

1/9/13 DOJ files supplemental brief in al Bahlul, acknowledging that the reasoning of Hamdan II means that conspiracy is not a war crime.

1/10/13 Brigadier General Martins announces that he has asked the Convening Authority to withdraw and dismiss the conspiracy count in the 9/11 case based on Hamdan II.

1/16/13 Prosecution files response (AE107A) to the defense motion to dismiss (AE107), stating that it will not oppose dismissal of the conspiracy charge if the military commission modifies the charge sheet to include a freestanding list of overt acts; prosecution also files its proposed changes (AE120).

1/17/13 Convening Authority announces that it refuses to accept BG Martins’ request to withdraw and dismiss the conspiracy count.

1/21/13 Prosecution files supplement (AE107A Sup.), stating that it will maintain its position in the face of the Convening Authority’s refusal to dismiss the conspiracy charge.

2/11/13 The defense motions seeking dismissal of the conspiracy charge and challenging the dual role of the Convening Authority are scheduled to be heard by the military commission.

Note that the key prosecution filings---AE 104 and AE 120---are noted on the 9/11 case's docket but still undergoing a security review and thus not yet available.  We'll post those when we can.