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.
Latest in Terrorism Trials: Military Commissions
On March 21, the U.S. Court of Military Commission Review (CMCR) upheld Ali Hamza Ahmad Suliman al Bahlul’s conviction and life sentence for conspiracy to commit war crimes. The court also dismissed Bahlul’s challenge that the military commission that convicted him lacked jurisdiction because the appointment of the convening authority (CA) for the military commissions was statutorily and constitutionally improper.
Military Commission Judge Bars Government From Using Defendants' Statements to FBI 'Clean Teams' in 9/11 Case
Military commission judge Col. James Pohl ruled Friday that “the Government will not be permitted [to] introduce any FBI Clean Team Statement from any of the Accused for any purpose” during the trial of Khalid Shaikh Mohammad and his co-defendants Walid bin Attash, Mustafa al-Hawsawi, Ramzi Binalshibh and Ammar al-Baluchi (aka Ali Abdul Aziz Ali). Each of the defendants stands accused of various offenses related to the 9/11 terrorist attacks. From 2002 to 2006, each was interrogated and allegedly tortured by U.S. government personnel at undisclosed locations overseas.
Last Thursday at the Aspen Security Forum—an annual gathering of current and former government policymakers, foreign officials, foreign policy experts, and journalists hosted by the Aspen Institute—Assistant to the President for Homeland Security and Counterterrorism Thomas Bossert told the audience that there are three viable options for taking an enemy combatant off the battlefield: “we can kill him, we can catch him and release him after a few weeks, maximum, or we can outsource our responsibility and send him to a third party.”
When you take an 18-month break, it’s unsurprising that you’ll return home to some cobwebs that will need to be swept away. The second of three days of motion hearings in the Nashiri military commission continues where the first left off: with another round of housecleaning focused on establishing the itinerary for the remaining two days.
Steve Vladeck this morning beat me to the punch on a key takeaway about the Al Nashiri II decision yesterday. But his attitude toward the subject is a bit different from mine. So while I agree with him on a crucial bottom-line point, I would formulate the matter a bit differently.
Unless you're someone who keeps a copy of Hart & Wechsler on your desk, you probably don't care that much about Tuesday's divided ruling by the D.C. Circuit in In re Al-Nashiri (which, for ease of reference, we should call "Al-Nashiri II," to distinguish it from the D.C. Circuit's February ruling on different matters in "Al-Nashiri I").
As Jack noted earlier this morning, Lawfare's Alex Loomis has a fascinating new paper up on SSRN (for the moment, anyway) about the scope of Congress's Article I power to "define and punish . . .
Anyone following the Guantánamo military commissions would do well to read Bob Loeb and Helen Klein's trenchant take on last Friday's D.C. Circuit decision in In re Khadr, in which the Court of Appeals declined to issue a writ of mandamus even while agreeing that there may be a serious question "whether the civilians who serve as judges on the U.S.
As Robert Loeb noted is his post yesterday, on Wednesday, the D.C. Circuit again heard oral argument in the case of Guantánamo detainee, Abd al-Rahim al-Nashiri. As readers know from that post, Nashiri is charged with pre-9/11 offenses, including the bombing of the USS Cole in 2000.