As originally posted in the reader-diary section of Firedoglake.com; the post’s 2009 comment thread is available at that link.
As reported Friday by Lyle Denniston of scotusblog.com, principled military defense counsel, in the Military Commissions proceeding United States of America v. Khalid Sheikh Mohammed, et al., have courageously and commendably appealed to an independent federal court – over the heads of the unaccountable commission’s unresponsive military judges – in an overdue effort to provide genuine, competent defense services to their imprisoned clients.
These non-UCMJ military tribunal proceedings were first unilaterally instituted by the Bush/Cheney/Rumsfeld administration, then formalized with Congressional blessing in 2006 (with the help of both Parties) after the Supreme Court finally stopped that particular Bush/Cheney grab for unchecked power. These irregular and unjust commission proceedings have attempted to railroad to their death, as admitted 9/11 conspirators, the long-held-and-abused clients of these military JAG lawyers.
The Appeals Court has ordered the government to reply by next Tuesday.
Filed on Wednesday, September 9, 2009, in the United States Circuit Court of Appeals for the District of Columbia, on behalf of Ramzi Bin Al Shibh, by U.S. Navy JAGs Suzanne Lachelier and Richard Federico, of the Office of Chief Defense Counsel, Military Commissions, Department of Defense, in the form of a Petition for Writ of Mandamus And Writ of Prohibition:
RELIEF SOUGHT
Petitioner requests that the Court hold that the Military Commissions Act of 2006 is unconstitutional, declare all proceedings before the military commission to be a nullity, and enjoin further proceedings therein.
ISSUES PRESENTED
(1) Does the Military Commission Act of 2006, on its face or, in the alternative, as applied in the military commission proceedings below, exceed Congress’s constitutional powers to convene law-of-war military commissions under the Define and Punish Clause (Const., Art. I, sec. 8, cl. 10)?
(2) Does the Military Commissions Act of 2006, on its face, violate the equal protection component of the Fifth Amendment’s Due Process Clause?
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We demonstrate in this Petition that the Military Commissions Act of 2006, Pub. L. 109-366, 17 (October 2006) (“MCA”), on its face and as applied in this case, exceeds the constitutional limits on Congress’s power to authorize military commissions. In the terms of Geneva Convention Common Article 3, the commission in this case is not a “regularly constituted court.” Because Petitioner has the right not to be tried by a tribunal that has been ultra vires from its inception, the petition should be granted and the case should be dismissed.
Mandamus and prohibition are remedies to be applied only in extraordinary circumstances. The situation facing Petitioner is indeed extraordinary, however. Not only is the MCA unconstitutional on its face, but the proceedings themselves have been “irregular” in every sense. In fact they have been a travesty of justice, a “system” — in the military judge’s own words — “in which uncertainty is the norm and where the rules appear random and indiscriminate.” Military Judge Ruling D-126, at 3.
The reason for this state of affairs, moreover, is clear: These cases were never intended to do justice. Instead, what the government has sought, and to date received, is not a legitimate judicial proceeding but a political show trial.
The process has been corrupted by illegitimate political considerations at every step. Political distortions of the judicial process begin with the MCA itself. The provision limiting its jurisdiction to aliens (the basis of the facial challenge infra) was designed to avoid the political consequences of imposing the MCA’s facially unconstitutional procedures like this on American citizens. Sections 948c, 948d(a). No other American criminal court system is so obviously founded on such politicized and illegitimate premises.
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Most recently, the FBI began an investigation of military defense counsel that has calculatedly employed heavy-handed investigative techniques that have destroyed attorney-client relationships and the ability of some counsel to perform their defense responsibilities. The investigation was almost certainly instigated by the CIA, since it is being overseen by the agency of the Department of Justice to which the CIA reports. Peter Finn, Detainees Shown CIA Officers’ Photos: Justice Dept. Looking Into Whether Attorneys Broke Law at Guantanamo, Washington Post (August 21, 2009).
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The absence of rules has suited the prosecution’s overarching strategy, which has been to avoid all regular trial process and proceed directly to execution. The government has been explicit about this goal.
[…][Footnote 4: Since her appointment in February 2007, the [Convening Authority, Ms. Susan Crawford] has denied 84 percent of expert requests from defense counsel in military commissions. The few granted experts occurred predominantly in United States v. Omar Khadr, where the Canadian government has been actively involved.]
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Throughout these proceedings, there has been a concerted effort to interfere with the attorney-client relationship and the defense function. Even as Petitioner’s competency to stand trial remained undetermined, the military judge persisted in ordering the filing of “law motions,” and scheduled a hearing for December to address the law motions filed to-date, and discovery matters.
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Then, at the close of the hearing, the military judge ignored his own docketing order, addressing counsel matters by granting a motion to relieve standby counsel — even though counsel was not in attendance because he relied on the military judge’s earlier docketing order limiting the scope of the hearing to matters that did not concern his client. Thus, the most recent hearing in this case exemplified, in an egregious manner, the pattern of misleading the defense about matters that would be addressed, and continuing to do away with the role of defense counsel.
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From the beginning of this case, the role of intelligence agencies and classification rules has been foremost in dictating the course of proceedings. Any statement by the accused is presumptively classified. Attachment NN, at 1. The proceedings are broadcast with a delay in the audio feed of the closed-circuit broadcast, and the CIA security specialists determine whether to cut the feed. Id. at 2.
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The MCA vests this Court with “exclusive appellate jurisdiction” to determine the validity of final judgments rendered by military commissions. 10 U.S.C. Sec. 950g.
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“The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.”
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As for (4) and (5), the defect in the commission’s subject matter jurisdiction is “oft-repeated” because it infects every commission case under the MCA, and by the same token, raises an important – because it nullifies all proceedings under the MCA, not only Petitioner’s – and novel issue of law, in that the constitutional argument is one that, to counsels’ knowledge, has never been raised before and that does not rest on Petitioner’s individual constitutional rights but the constitutional Section 8 “enumerated power” which authorizes (or rather, fails to authorize) Congress’s enactment of the MCA in the first instance.
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Here the military commission lacked jurisdiction from the outset because the MCA exceeds the “enumerated power” that grants Congress authority to establish law-of-war military commissions in the first instance. M’Culloch v. Maryland, 17 U.S. 31 6,404 (1819).
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The enumerated power at issue here is the Define and Punish Clause. That clause grants the power to “define and punish . . . Offenses against the Law of Nations,” Const., Art. I, Sec. 8, cl. 10. As a matter of its plain text and historical understanding at the Founding and since, the constitutional limits on legislation enacted under its authority are determined by reference to the “Law of Nations.” (Section IV.A.1.)
The MCA exceeds these limits because, insofar as it facially discriminates between aliens and citizens, it violates the “Law of Nations” as authoritatively determined by the Supreme Court in Hamdan, supra – in particular, that part of the “Law of Nations” that requires that military commissions constitute “regularly constituted courts.” (Section IV.A.2.)
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The specific substantive limits the Define and Punish Clause imposes on the jurisdiction of law-of-war military commissions are determined first from the plain text of the Constitution. If the power to convene military commissions is an exercise of Congress’s power to “define and punish . . . Offenses against the Law of Nations,” then it must be the “Law of Nations” that sets the limits. That is, along with the jurisdictional limit on what crimes Congress has the power to “define” under this clause, see Quirin, 3 17 U.S. at 27-8, the “Law of Nations” also places restrictions on the jurisdiction and procedures established by Congress to determine how it will decide who to “punish” for these crimes.
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The binding effect of the Law of Nations with regard to criminal prosecutions generally – even in federal court – was similarly recognized in the early Republic.
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In short, contemporaneous with the Founding, American law and military practice as well as British law and practice all held that procedures afforded to unlawful enemy combatants were to conform to the Law of Nations.
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In sum, there is an unbroken tradition dating from before the Founding that construes the power of Congress to regulate the procedures used to try individuals charged with “offenses against the Law of Nations” to be limited by the same “Law of Nations” that limits Congress’s authority to “define” and to “punish” such offenses.
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The [Supreme] Court went on to hold, in a definitive interpretation of the “law of nations,” that “a military commission ‘can be “regularly constituted” by the standards of our military justice system only if some practical need explains deviations from court-martial practice,”‘ id., at 632-3 (plurality; quoting Kennedy, J., concurring, id., at 645); id., at 645 (Kennedy, J., concurring). Despite the fact that the MCA declares itself to be a “regularly constituted court,” 10 U.S.C. Sec. 948b(f), it is in patent violation of Common Article 3 as construed by the Supreme Court. Accordingly, it exceeds Congress’s powers.
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Most significant, however, are the provisions that subject aliens alone to MCA jurisdiction, 10 U.S.C. Secs. 948c, 948d(a) and (c), because the pre-amendment UCMJ made no such distinction either under its regular “good order and discipline” jurisdiction or special law of war jurisdiction.
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The Supreme Court long ago held, however, that American citizens may be subjected to law-of-war military commission jurisdiction to the same extent as aliens. Quirin, 3 17 U.S. at 15- 16
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Quirin’s holding, moreover, is consistent with the unbroken history of American law-of-war military commissions, which prior to enactment of the MCA – and fully consistent with court-martial practice – have never made a jurisdictional distinction on the basis of national origin, and have in fact tried American citizens as violators of the law of war. Indeed, Americans were tried before the Founding by what we would now call a law-of-war military commission.
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In sum, it is too late in the day for the government to argue that any “practical need explains the deviations” between the MCA’s jurisdictional limitation to aliens and court-martial jurisdiction, which does not [so limit its jurisdiction].
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Irregularity of the most fundamental type – the lack of legality and notice – has been the norm in these proceedings, as the Military Judge conceded in describing them as “a system in which uncertainty is the norm and where the rules appear random and indiscriminate.” Military Judge Ruling D- 126, at 3.
The fact that these are capital prosecutions only underlines the stunning nature of this admission.
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By contrast, American enemy belligerents may only be tried in federal court or in regular court-martial proceedings under the special law-of-war court-martial jurisdiction, which applies to “persons” without regard to national origin. 10 U.S.C. Sec. 818. American enemy belligerents are thus entitled to the full protections of the Constitution or the regular military justice system that tries American service members, while aliens are relegated to a criminal justice system that is specifically designed to deny them those rights.
Those words are straight from the trenches of our disgraceful, mostly-hidden-from-public-view Military Commissions For Muslims system, and are authored by patriotic members of our military JAG corps, in their capacity as defense counsel for some of the tiny minority of genuinely “high-value” prisoners, legitimately suspected of terrorism, who are held captive, in segregation, away from any contact by the media or Members of Congress, in Guantanamo Bay, Cuba.
It’s a description, by military defense counsel, of a politicized, fraudulent system of show trials, that echoes similar descriptions by former commission defense counsel, as well as descriptions by multiple former commission prosecutors.
And it’s a description of a profoundly unfair, and profoundly unAmerican, system of military “justice” that the Democratic Congress, by way of the Senate Armed Services Committee chaired by Carl Levin, and the Obama administration are attempting to rehabilitate – by simply tinkering around the edges of a Bush-implemented system that is obviously wholly unjust, and an affront to venerable precepts of military justice long upheld by those who regularly and honorably practice it.
Carl Levin is in secret conference negotiations right now with Ike Skelton of the House Armed Services Committee (with Party leadership/White House input), as they try to merge the FY 2010 Defense Authorization bills passed by the House and Senate into one. The Senate bill has resurrected the 2006 Military Commissions Act with some slight and superficial amendments; the House bill has not.
This new court filing and development ought to, at a minimum, counsel caution, and a delay of any revised MCA legislation for further study and debate, before new, unsound amendments are enacted in a misguided effort to institutionalize a system – of discrimination and unequal justice – that is unnecessary, unwise, and profoundly unfaithful to American principles of military and civilian justice.