Military Commissions

October 18 Commission Session #3: On Presumptive Constitutional Application

By Wells Bennett
Thursday, October 18, 2012, 1:52 PM

James Connell III, lawyer for Ali Abdul Aziz Ali, has our biggest ticket item for the day: he wants a declaration regarding the Constitution’s application to military commission proceedings at Guantanamo.  That’s AE57, for those of y’all following at home.

The issue, Connell says, is simple, at least under existing Supreme Court precedents---chiefly Boumediene.  The Constitution should be presumed to apply here, with the burden on the government to rebut that presumption pursuant to Boumediene’s impracticability analysis.  Intriguingly, the lawyer says, the prosecution doesn’t really contend otherwise.  Instead, the government counsels ducking of the broader constitutional question, based avoidance principles.  But you don’t hear anyone on the prosecution claiming that the constitution doesn’t apply, writ large.  Judge Pohl smells an advisory opinion here.  Isn’t that what Connell seeks?  No, he doesn’t; instead he wants a procedural framework in which to operate.  But that very framework, Judge Pohl pushes back, only comes into play if I look past the detainees’ statutory rights under the MCA, and address constitutional matters.  Just this week in Hamdan II, the court adds, the D.C. Circuit employed an avoidance approach in its interpretation of the MCA.  Connell dissembles a bit, neither agreeing nor disagreeing with the judge’s characterization of the appellate court’s analysis.  But soon he’s advocating avoidance, too---that is, avoiding constant argument over the same basic legal issue. The defense’s motion, Connell emphasizes, aims to avoid litigating constitutional matters over and over again. He supports this appeal to judicial economy with a slide.  It displays a battery of pending motions, all of them implicating the accuseds’ constitutional rights.

The court asks whether Boumediene applies to provisions beyond the Suspension Clause.   According to Connell, parts of that decision bear only on the Suspension Clause, but other parts of the opinion reach more broadly.  The defense lawyer refers to Boumediene’s impracticability analysis.  The Supreme Court could have limited this to the Suspension Clause, but it didn’t.  And remember, Connell continues, the idea is not to deem the entire Constitution applicable to these proceedings, but instead to presume as much.  In each particular instance, prosecutors should have to demonstrate, under Boumediene, why a particular provision should not control.  Pohl sees that as reversing the ordinary approach.  Usually, the burden is on the proponent to establish that he or she may invoke a particular individual right, the court says.  Connell notes that the difference between such a right and a structural limit on Congress is far from obvious---and we know that structural constraints apply down here in Guantanamo.  Take the First Amendment.  Its text says Congress shall not enact certain laws, but that same text long has been read to confer rights on individuals.  The court is obviously confused, and suspects that, its contrary claims notwithstanding, the defense actually wants him to issue an advisory opinion.  The lawyer still insists otherwise.  His motion cannot be advisory because it seeks a true remedy from the court: a presumption that will govern future constitutional litigation in this case.

Connell yields the floor to Captain Jason Wright, one of KSM’s attorneys.  The latter cites Hamdan II; Judge Pohl reminds the lawyer about the case’s application of traditional avoidance principles.  Wright acknowledges this but argues nevertheless that the D.C. Circuit’s opinion cuts against the government and in favor of the accused: implicitly, this week’s opinion recognized that Article I of the Constitution indeed runs to Guantanamo.  Wright then adopts Connell’s arguments, as does Cheryl Bormann, lawyer for Walid Bin Attash.  The pair is followed by James Harrington, who contributes a few words about standing.  That seems to be a question in this case, but ordinarily, criminal defendants need not prove their standing when their individual rights are infringed.  Is it your position, then, that the Constitution applies here just as it would in a federal courtroom?  Yes, says Binalshibh’s attorney.  And Harrington adds that the defense’s motion is necessary, not only for the reasons Connell set forth, but also for another reason.  The prosecution steadfastly refuses to acknowledge the Constitution’s application to military commission proceedings, but in its court filings, the government also repeatedly cites to constitutional decisions of the Supreme Court. 

Clay Trivett gets to address that seeming oddity on behalf of the prosecution.  Before he can, Judge Pohl wants to know: what is the government’s position as to whether or not the U.S. Constitution applies to the accused in this case?  Well, the MCA framework is part of the Constitution, Trivett begins.  The court stops him and asks for a direct answer.  Trivett again: a broad declaration about the Constitution is unnecessary, as the court mentioned earlier.  There are disputes in this case, but they are purely statutory; consider, for example, the quarrel among the parties about military commission Rule 703.  Judge Pohl pushes a third time, and Trivett now ponies up.  The government’s position is this, he says.  Congress did not clearly intend to apply all of the Constitution’s provisions to Guantanamo.  The MCA demonstrates as much by, among other things, omitting a mechanism for the use of grand juries.  Of course, the defense can attack the statute’s omission of constitutionally-guaranteed grand jury procedures in specific litigation, and the government certainly would oppose such a challenge in light of the Supreme Court’s ruling in Quirin.  But this example embodies a concrete dispute, the kind which does not confront the court now. It is not fair, Trivett emphasizes, for the defense to seek an advisory opinion, particularly regarding underlying rights that the detainees may not have in the first place.

The prosecutor addresses a few points advanced by Connell and Wright.  The defense, Trivett says, has Boumediene and Hamdan II all wrong.  Those cases hardly stand for the idea that the whole Constitution applies to Guantanamo: Boumediene had only to do with the territorial reach of the constitutional writ and the legal effect of Section 7 of the 2006 MCA.  Rather than addressing those narrow issues, the Supreme Court instead could have made a blanket declaration regarding the Constitution’s extension to Guantanamo---but it did not.  Regarding Hamdan II, Trivett says that any Fifth- and Sixth- amendment based claims by the detainees are foreclosed by the Court of Military Commission Review’s analysis in Hamdan II---which the D.C. Circuit did not disturb in its decision this week.  If there is another, ripe constitutional issue that the defense wishes to litigate, and no existing precedent resolves it, then the government will brief it, the prosecutor says.  But in the meantime, the CMCR concluded already that Boumediene doesn’t confer individual rights, and that conclusion is binding on this court.  Trivett sits.

Connell presents his reply argument.  Boumediene’s impracticability analysis turns on factual consideration, he says.  And that’s precisely why we’ve brought our motion.  If the government has information that, for example, might reveal the impracticability of applying the compulsory process clause, then it should have to put that information forward.  But in the meantime, the most sensible, workable way forward is to presume that the compulsory process clause applies.

The defense lawyer's argument concludes, and lunch time is open us.  We’ll resume at 2pm.