Sunday, July 25, 2010
Monday, July 19, 2010
Thursday, July 15, 2010
Lumen N. Mulligan, ESSAY: DID THE MADISONIAN COMPROMISE SURVIVE DETENTION AT GUANTANAMO? 85 N.Y.U.L. Rev. 535 (2010).
Tuesday, July 13, 2010
Monday, July 12, 2010
Frustration, Boycotts, and the Arkansas Ethics Rules (Or, Just Another Day in the Life @ Camp Justice)
What follows is my first-hand report on today’s proceedings here at Guantánamo in the military commission trial of Omar Khadr, a Canadian citizen captured in Afghanistan in the summer of 2002 at the age of 15, and charged with, among other things, throwing the grenade that killed Sergeant Christopher Speer. I came down here as observer for the National Institute of Military Justice—an NGO affiliated with my law school that was founded in 1991 to promote the fair administration of justice in the military system, and to educate the public, press, and Congress about the military justice system. Although I am here through NIMJ’s good graces, it should go without saying that what follows are my own views, and do not necessarily represent the position of NIMJ, its leadership, or its employees.
I had never been to Guantánamo before yesterday. Notwithstanding my involvement at various stages in the Hamdan litigation and in various other cases involving non-citizens detained here, I had somehow managed to avoid this remote stretch of southeastern Cuba in my travels—for better or for worse. Now, after observing almost a full day’s worth of proceedings in Omar Khadr’s case (the big news from today’s events has already been broken elsewhere), I think it’s easy to see why everyone is so frustrated—the lawyers on both sides, the judge, the defendant, even the JTF personnel whose thankless job it is to deal with the dozens of people (like me) who converge upon the base from afar for each new round of hearings. Frustration comes cheap here at Camp Justice; progress is the priceless commodity.
Frustration is also at the heart of the current predicament in Khadr’s case. Although Khadr had largely been cooperating with his lawyers, that changed recently, for reasons that we can only speculate about (I won’t here). Thus, Khadr fired his civilian lawyers, and made representations to the court that he also wanted to rid himself of his detailed military lawyer, Lt. Col. Jon Jackson. The court initially took that as a motion to proceed pro se, and, ostensibly, that was the matter pending before the court when it convened this morning.
It quickly became apparent, though, that self-representation was but means to an end for Khadr—that his own frustration with the entire process had boiled over, and that he no longer wanted to participate (or have anyone actively participate on his behalf) in the commission. After reading a prepared statement (available here), and reiterating time and again that he believes the outcome of the trial is foreordained no matter what happens now or what arguments are made, Khadr got into a lengthy colloquy with the judge, Army Colonel Patrick Parrish, about his intentions. Parrish, who initially seemed inclined to allow Khadr to represent himself, only slowly came to realize that self-representation wasn’t Khadr’s real endgame, and that, if he allowed Khadr to represent himself, there would in fact be no defense. Suffice it to say, though, that it took the better part of separate 46-minute and 25-minute hearings this morning before this all became apparent, and I think there were at least two distinct points in the interim when Judge Parrish was prepared to rule to the contrary and allow Khadr to represent himself.
Of course, the Constitution does confer a qualified right upon defendants to represent themselves, but (1) that assumes that Khadr has Sixth Amendment rights, hardly a settled proposition; and (2) the right is not absolute, and can be abridged, inter alia, in cases in which the defendant is mentally impaired from raising an effective defense.
Anyway, the question then became how the defense wished to proceed with its (still-) pending motion to suppress the various statements Khadr made to his interrogators, both here and after he was initially detained at Bagram. And that’s what precipitated the second recess, to allow Lt. Col. Jackson to confer with Khadr and figure out whether the defense would (1) withdraw the motion; (2) take no action (which would presumably mean the motion would be decided based purely on the existing record and any further argument by the government); or (3) call witnesses and present evidence in support of the motion. Related, there’s also the timing question. With the trial still scheduled for the week of August 9, and with no witnesses here to testify in conjunction with the suppression motion, each of these options carried consequences for what at times today seemed to the most frustrating problem of all—the calendar!
When things reconvened after lunch, Judge Parrish asked Khadr which of those options he wished to pursue, and Khadr, again, said he was “boycotting.” Perhaps it’s just me, but once Parrish decided that Jackson was still going to be Khadr’s lawyer, it seems that such a strategic question should have instead been directed to Jackson. Little matter, though, because Parrish immediately turned to Khadr’s military lawyer, who now finds himself in an awful bind. On the one hand, his client clearly wants him to do nothing at all (and doesn’t even like the idea that he is still Khadr’s lawyer). On the other hand, his ethical obligations as a lawyer may well compel him to act against his client’s wishes at least to some extent so long as he reasonably believes it to be in his client’s best interests. Different Guantánamo lawyers have handled this problem differently, and, in any event, state ethics rules may well vary. And if that weren’t enough, there’s Rule 109(b)(3)(A) of the hot-off-the-presses 2010 Manual for Military Commissions [I know, how’d I miss that one?], which provides that “In effecting a choice of law between the professional responsibility rules of a counsel’s licensing jurisdiction and the rules, regulations, and instructions applicable to trials by military commission, the latter shall be considered paramount, unless such consideration is expressly forbidden by the rules of a counsel’s licensing jurisdiction.”
It’s not as if these kinds of issues don’t arise in civilian courts; of course they do. Judges are faced all the time with recalcitrant defendants who want to represent themselves, or with lawyers who feel caught between their obligations to their client and to their bar. The difference, so far as I can tell, is that the civilian system has tradition and precedent, from which stability—if not legitimacy—naturally flows. Here, in contrast, there’s no law on virtually any subject, and so there are just too many independent variables, only so many of which can be controlled by the text of the Military Commissions Act or the Rules for Military Commissions.
So, Lt. Col. Jackson did what any reasonable lawyer in his situation would do: he punted, asking the court for time to consult with (and obtain an opinion from) professional responsibility experts in both the Army Judge Advocate General Corps and in the Arkansas bar. Not for the first time today (but perhaps the most vociferously), the prosecution objected to any further delay, suggesting that Khadr is manipulating the process, mocking the commission, and seeking only to further postpone the proceedings, never mind that Khadr himself said four or five times today that he wants the trial to be over as quickly as possible. Nonetheless, Judge Parrish decided to give Jackson until August 2 to hear back from the JAG and the Arkansas bar, and to leave untouched, for the moment, the trial date for the week of August 9, leaving aside the sheer impossibility of either resolving the ethical issue or, even assuming that goes quickly, disposing of the (fairly critical) suppression motion. [There are no available dates for all of the necessary parties to convene again here between now and August 9.]
And so, court finally adjourns for the day (week? month?) around 2:30 p.m., with the distinct sense that a whole lot of effort was expended by a number of people who mean really well, and nothing at all was accomplished.
Just another day in the life at Camp Justice.
Saturday, July 10, 2010
Thursday, July 8, 2010
Yesterday, July 7, 2010, Ibrahim al Qosi plead guilty to conspiracy and to material support for terrorism, as part of a pre-trial agreement that would limit the amount of time that al Qosi would serve. The two charges carry a maximum of life in prison. Although neither the revised charge sheet, nor the jointly stipulated statement of the facts were available before trial, and the pre-trial agreement will remain sealed until after sentencing, the military judge, Air Force LTC Nancy Paul, read from all three documents to ensure that al Qosi’s plea was knowing and voluntary, and in compliance with the Rules for Military Commissions.
On the conspiracy charge, al Qosi agreed that he was a member of al Qaeda since February 15, 1996, knew that al Qaeda was an internationally recognized terrorist organization, and knew that Osama bin Laden had issued a fatwa against the United States and its citizens with the aim of influencing the behavior of the country and its citizens. Al Qosi provided logistical support for al Qaeda—he was a cook and driver for bin Laden and other al Qaeda leaders, and this employment was the sole means of support for al Qosi, his wife, and children.
For the second charge, providing material support for a terrorist organization, the stipulation enumerated the several times that al Qosi had moved to follow bin Laden and al Qaeda, from Sudan to Pakistan, then to Afghanistan after Kabul fell to the Taliban. While in Pakistan, in the winter of 1996 and spring of 1997, al Qosi served as the cook at bin Laden’s compound outside of Jalalabad. Al Qosi helped with the move from Jalalabad to a larger compound at Khartoum, where he served as the cook in the unmarried quarters. Although al Qosi did not have foreknowledge of, plan, or participate in the 1998 attacks against U.S. embassies in Dar es Salaam and Nairobi, the 2000 attack against the USS Cole, or the 9/11 attacks, al Qosi continued to work for and take orders from members of al Qaeda after learning of the organization’s involvement in these attacks.
The portion of the pre-trial agreement the judge read at trial set forth a few conditions, in return for a promise by the convening authority to limit the sentence to an agreed-upon number of years in confinement. Al Qosi agreed to the government’s stipulation of the facts, agreed to a limitation of his rights to call witnesses at sentencing, and agreed not to support hostilities against the United States or coalition members or provide operational support for such activities in the future.
Most importantly, the defendant waived the right to receive credit for time served—amounting to over eight years—credit that he would not receive anyway under the 2009 Military Commissions Act.. He also waived the right to appeal his detention, trial or sentence, the right to challenge his conviction on collateral appeal, the right to file a habeas petition, and agreed to withdraw his current habeas petition following sentence. He still retains the right to challenge a sentence in excess of statutory limits or whatever limit is contained in the pre-trial agreement. Finally, al Qosi agreed to refrain from taking action or joining an action against United States or other personnel, acting in their official capacity or otherwise, with regards to his capture, detention, prosecution or sentencing. At trial, al Qosi’s right to challenge an Executive branch decision to detain al Qosi as an unprivileged enemy belligerent after serving his sentence was not addressed. Although his defense counsel would not discuss any particulars of the pre-trial agreement, indications are that al Qosi retains the right to file a future habeas action to challenge any post-sentence detention.
A sentencing hearing is currently scheduled for August 9, 2010. The pre-trial agreement will remain sealed until after sentencing, and the panel—not present at yesterday’s hearing—was instructed on July 1 to refrain from reading about the hearing or anything else that would otherwise affect their ability to sentence fairly. In a press conference shortly after the trial, the government counsel, while declining to discuss the pre-trial agreement, stated that repatriation or transfer for detention was outside the control of the convening authority or a pre-trial agreement, and declined to comment about any agreement as to which compound in Guantanamo al Qosi will serve his sentence. The defense counsel decided not to issue any statements.
Preparation before traveling to Guantanamo to observe the trial was difficult, because of the lack of publically available information. It is very surprising that the first successful Guantanamo detainee conviction under the Obama administration and only the fourth since 9/11 should still be so clouded in secrecy. The most recent information on the Department of Defense’s Military Commissions website about al Qosi’s case is the November 20, 2009 docketing order for December 2 oral arguments on several defense motions. The Military Commission website does not have the current, amended charge sheet or the stipulation of fact. Nor does the website have a transcript of the December 2 oral argument or the judge’s rulings on the motions argued on that date, including several defense motions to dismiss for lack of jurisdiction—bill of attainder, Common Article 3 of the Geneva Conventions, and Equal Protection. The commission’s ruling on the government’s motion to amend charges is not on the Commission’s website, but is publicly available, as are several other documents not available on the official website.
Tuesday, July 6, 2010
Sunday, July 4, 2010
From the LawProfsBlog, specifically Crim Prof Blog here is a link to Roach on Terrorism Prosecutions
Kent Roach (University of Toronto - Faculty of Law); The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation between Intelligence and Evidence (Kent Roach, RESEARCH STUDIES OF THE COMMISSION OF INQUIRY INTO THE INVESTIGATION OF THE BOMBING OF AIR INDIA FLIGHT 182, VOL. 4, Supply and Services, 2010) on SSRN.
Here is the abstract:
The focus in this study isle on the unique challenges presented by terrorism prosecutions especially those relating to the disclosure of otherwise secret intelligence.. The first part of this paper will provide an historical outline of thinking about the distinction between security intelligence and evidence. The second part of this paper will outline some of the competing goals that should inform the relationship between security intelligence and evidence. The third part of this paper will examine issues related to the use of information collected by the Canadian Security Intelligence Service (CSIS) as evidence while intelligence is generally collected under less demanding standards than evidence. The fourth part of this paper will examine disclosure requirements as they may be applied to intelligence. The fifth part of this paper will examine possible legislative restrictions on disclosure and through the expansion or creation of evidentiary privileges that shield information from disclosure. The sixth part of this paper will examine existing means to secure nondisclosure orders to protect the secrecy of intelligence in particular prosecutions. The seventh part of this paper will examine the procedures used in the United States, the United Kingdom and Australia to resolve claims of national security confidentiality, with a view to understanding how the approaches used in those countries differ from those used in Canada and whether they provide a sounder basis for maintaining a workable and reliable relationship between security intelligence and evidence. The conclusion of this paper will assess strategies for making the relationship between intelligence and evidence workable. The strategies include both front-end strategies that will affect the collection of intelligence and back-end strategies relating to partial non-disclosure of intelligence that is not used as evidence. All of these issues are united by the need to establish a reliable, workable and fair relationship between intelligence and evidence. They raise fundamental questions about the viability of criminal prosecutions as a response to the threats of, and to acts of, international terrorism such as that which resulted in the bombing of Air India Flight 182.
Friday, July 2, 2010
Thursday, July 1, 2010
The latest hearing in Noor Uthman Muhammed’s military commission convened yesterday morning. The Accused did not attend, and the hearing’s first few minutes were spent establishing that Noor’s absence was, indeed, knowing and voluntary. The hearing was set to discuss discovery, issues regarding the continuity of Noor’s representation by MAJ Amy Fitzgibbons, and a defense motion for the appointment of a psychological expert.
However, by the time the hearing began, the defense and the government had made sufficient progress regarding the discovery issues that neither party desired to argue those issues in court. MAJ Fitzgibbons’ status as one of Noor’s counsel was resolved in the days leading up to the hearing. MAJ Fitzgibbons had been taken off of Noor's case by the Army when she changed jobs within the service. A new agreement allows MAJ Fitzgibbons to remain as Noor’s defense counsel. The only issue left to discuss was the defense motion to appoint a psychological expert consultant.
The court heard first from the defense, which made a point of asking for Dr. Ghannam specifically. LCDR Doxakis, the other military counsel assigned to Noor’s case, outlined several reasons for appointing this expert. First, the defense argued that Noor may be suffering from Post-Traumatic Stress Disorder and depression as a result of the “unique” conditions of confinement and interrogation to which Noor had been subjected. LCDR Doxakis also noted that Noor has been prescribed psychiatric medication, although there is no evidence he received a psychiatric evaluation. The second reason LCDR Doxakis cited for appointing Dr. Ghannam to the case was that Noor suffers from chronic pain, and that this could be a symptom of an undiagnosed mental health problem. Third, Dr. Ghannam would be utilized to assess the voluntariness of Noor’s statements made while under interrogation. In addition, Dr. Ghannam might be used in the sentencing phase of the commission to testify in mitigation, should Noor be convicted. LCDR Doxakis noted that Noor’s statements were the lynchpin of the government’s case against him, and that an expert was needed to adequately prepare for the introduction of those statements by the government. The defense noted that Dr. Ghannam was uniquely qualified to serve as an expert, because he had previously worked with detainees released from Guantanamo and speaks Arabic. Finally, the defense asked that Dr. Ghannam be pre-approved to provide 200 hours of work, so as to avoid the necessity of having a hearing to approve work every time the defense needed it.
The government took the position that the defense had not made a sufficient showing to support their request for an expert to be attached to their team. LCDR Arthur Gaston, the lead counsel for the government, also asserted that the motion should not be granted because the expert's help in developing a theory of the case alone did not warrant spending taxpayer dollars. LCDR Gaston then argued that, if the defense could assert specifics about the case, that an examination should be made at an RMC 706 hearing to determine mental competency and responsibility.
The defense responded that they had provided enough specific information in their motion to support the appointment of a psychological expert and that the government had been given adequate time to suggest an alternative to Dr. Ghannam, which it was unable to do. With that, the judge announced that she would take the motion under advisement and rule at a later date. The next hearing in Noor’s case will take place in late September.
For a more in-depth analysis of this hearing, look for the next installment of NIMJ Reports from Guantanamo.
The Armed Forces Tribunal of India, Principal Bench, has set aside a 1987 [!] court-martial. The April 1, 2010 decision in Chillar v. Union of India can be found here. The court concluded with the following observations:
Before parting with the case, we would like to observe that in conduct of Court Martial proceedings some elementary mistakes are committed. Neither the Judge Advocate, who advises the Court Martial proceedings, has, at any time, experience of conducting sessions trial, as a result of which he could not properly advise the Court Martial authorities nor the prosecutors are properly trained to conduct such criminal trials. As per Section 152 of the Army Act, 1950 Court Martial under the provisions of the Army Act shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code and the Court Martial shall be deemed to be court within the meaning of Sections 345 and 346 of the Code of Criminal Procedure, 1973. For such matters, a properly trained prosecutor is required. This is highlighted in this case that such elementary mistakes were committed in conduct of the criminal prosecution. Therefore, the authorities, should appoint proper prosecutors for conducting such criminal cases in Court Martial proceedings, likewise, a trained Presiding Officer, who knows how to conduct the criminal trial or a Judge Advocate who had an experience of conducting the criminal trials.
We have seen number of Court Martial cases, which have come before this Tribunal and we find that most of the elementary mistakes were committed in conduct of the criminal trials under Court Martial proceedings. Now a proper appeal lies against the court martial proceedings before this Tribunal, the Tribunal has to examine all the procedure as well as substance of the criminal trial like in Court of Appeal, including appreciation of the evidence, and our experience is that the trials in the Court Martial proceedings relating to civil offence[s] like murder or other penal code offences or offences under the other acts are not properly conducted like a regular criminal trial. The result is that they will turn into acquittal. Therefore, now in changed situation, when the Court Martial proceedings are amenable to regular appeal under the Act, the authorities have to undertake the overall review of conducting Court Martial trials pertaining to offences under penal code or other civil offences by a competent prosecutor, who has experience of trial as well as the Presiding Officer should also be a trained person, who has seen the trials conducted by Sessions Court, so that they can appreciate the difference between the two and regulate the Court Martial proceedings as if they are conducting a criminal trial before sessions. Such Presiding Officers should be sent for training in a criminal court, where trials are conducted, likewise, the Prosecutors and the Judge Advocate. Therefore, the matter requires a serious consideration of overhauling of the procedure. Another important feature, which we would like to highlight that before presenting the matter for Court Martial three tier proceedings are taken, first, a preliminary enquiry, then, at the charge stage, and, thirdly summary of evidence, ultimately the matter goes to Court Martial. Therefore, this is a four tier exercise, which is also cumbersome, time consuming and totally unwarranted. Once the investigation is done, then, the case should be immediately taken before the Court and Court find prima facie charges, then, either Court may send it to session court for trial or if authorities want to try by Court Martial, then, it can apply before the Court. The preliminary enquiry at three stages, i.e. Court of Inquiry, framing of charge and summary of evidence is a useless exercise and it creates more confusion and lot of time consuming also. Therefore, this exercise should be shorten[ed] like a criminal trial, so that the proceedings of [the] Court Martial can be expedited.