In the wake of the September 11 terrorist attacks, the Bush administration revived the long stagnant precedent of Ex Parte Quirin to establish military commission trials for individuals detained during the Global War on Terror. Ever since, the administration, Congress, and the courts have been working out the details of the system, litigating the details on statutory, constitutional, and policy grounds, and struggling to bring key terrorist figures to trial. The Obama administration has been less than enthusiastic about pursuing charges using military commissions, though it has pursued some, and some of these trials have already dragged on for years.
Latest in Military Commissions
The latest appeal, one in a long line of many, raises again an interesting issue about whether the military commission convening authority is properly appointed under the U.S. Constitution.
In 2014, the State Department said that “the test for any nation committed to [the Convention against Torture] and to the rule of law is not whether it ever makes mistakes, but whether and how it corrects them.” In U.S. v. Al-Nashiri, the government is failing that test miserably by openly embracing torture-tainted evidence in violation of federal law, international law, and U.S. policy.
The letter urging clemency came after Khan last week became the first former prisoner at a black site to give an account of the so-called enhanced interrogation techniques agents used to extract information from terrorism suspects.
Military judge Col. Douglas K. Watkins issued a ruling on June 4 holding that military judges have "legal authority to grant administrative credit as a remedy for illegal pretrial punishment." The ruling came in the case of Majid Khan, a detainee at Guantanamo Bay who pleaded guilty in February 2012 to charges stemming from his helping to finance a 2003 al-Qaeda attack in Indonesia that killed 11 people. Khan was detained by the CIA from 2003-2006 and alleges that he was tortured while in custody. Col.
A new military commissions judge in the Abd al-Rahim al-Nashiri case has dismissed a series of government motions seeking to avoid turning over classified materials to Nashiri's defense team. In April, the U.S. Court of Appeals for the D.C. Circuit threw out more than three years of orders issued by the case's former, Col. Vance Spath. The government had requested "reconsideration" of 30 of Spath's now-vacated orders about classified evidence.
Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia has dismissed claims from a military commissions defendant alleging that he has been denied satisfactory medical care at Guantanamo Bay. The defendant, known as Abdul Hadi al Iraqi, had filed a motion to dismiss the case on multiple grounds, including alleged 8th amendment violations.
Last month, the military commission for the matter of United States v. Khalid Shaikh Mohammad et al. (i.e., the 9/11 trial) held a marathon three weeks of nearly back-to-back hearings. After being held up by delays in the publication and release of relevant transcripts, this post summarizes these proceedings and identifies several areas of potential interest, including testimony from two FBI special agents regarding their interviews with the defendants and their prior knowledge of alleged torture by the CIA.
September 9
The military commission trying alleged al-Qaeda commander Abd al-Hadi al-Iraqi reconvened Aug. 21-28. You can find previous Lawfare coverage here and here.
With a new judge presiding, the military commission in United States v. Khalid Sheikh Mohammed, et al. (the 9/11 military commission) reconvened July 22-26. See here for previous coverage on Lawfare.
With a new judge presiding, the military commission in United States v. Khalid Sheikh Mohammad, et al. (the 9/11 military commission) reconvened June 17-21. See here for previous coverage on Lawfare.