Legal issues surrounding military commissions

11/20/09: War on Terrorism reports that the role of military commissions in adjudicating the cases of suspected terrorist detainees at Guantanamo and elsewhere was critically examined in two House Judiciary Subcommittee hearings last July, the records of which have just been published.

11/09/09: Jurist reports that US officials are conducting reviews to determine which Guantanamo Bay detainees may face trials in military or civilian courts in the US, according to statements made by Attorney General Eric Holder to reporters Sunday.

11/06/09: The Miami Herald reports that the Democratic-controlled Senate on Thursday turned back a GOP-led effort to bar Sept. 11 terrorists from being prosecuted in civilian federal courts. Instead, senators voted 54-45 to support a request by Defense Secretary Robert Gates and Attorney General Eric Holder to have the option of prosecuting Sept. 11 terrorists such as accused mastermind Khalid Sheik Mohammed in either federal courts or by military commission. 11/05/09: Politico reports that nearly 150 family members of victims of the September 11 attacks have written to the Senate urging passage of an amendment that would effectively force military trials for 9/11 plotters by barring their prosecution in federal civilian courts. The amendment, proposed by Sen. Lindsey Graham (R-SC), is expected to come to a vote today during consideration of the Commerce/Justice/Science appropriations bill.

11/04/09: Politico reports that Defense Secretary Robert Gates and Attorney General Eric Holder wrote to Senate leaders last week to oppose an amendment by Senator Lindsey Graham (R-SC) that seeks to block the use of civilian courts to try 9/11 suspects.

10/29/09: Politico reports that the Defense Authorization bill that President Obama signed Wednesday afternoon contains changes the administration sought to the military commissions process likely to be used to try some of the terror suspects detained at Guantanamo Bay.

10/27/09: IntLawGrrls has a post summarizing and discussing recently amended provisions of the Military Commissions Act and arguing that the amendments reflect a modest step in the right direction.

10/13/09: ProPublica reports on the practical difficulties in releasing Guantanamo detainees whom judges have freed.

10/11/09: The Miami Herald reports that United States Senator Lindsey Graham (R-SC), who helped craft the 2006 law that established the military commissions, said Friday that he may attach an amendment to an appropriations bill that would prohibit the Obama administration from spending money on the prosecution and trial of the accused terrorists before US civilian federal judges.

10/10/09: JURIST reports that the US House of Representatives on Thursday passed HR 2647 which amends the Military Commissions Act of 2006 to provide suspected terrorists with greater due process rights. The Military Commissions Act of 2009 was approved by a vote of 281-146 as part of the National Defense Authorization Act granting $681 billion in military appropriations for the 2010 fiscal year. Among the bill's provisions are limitations on the use of hearsay or coerced evidence and greater defense access to witnesses and evidence.

10/09/09: Balkinization has a post discussing the National Defense Authorization Act and its provisions for appellate review of military commission trials. 

08/24/09: The Congressional Research Service has posted The Military Commissions Act of 2006: Background and Proposed Amendments. This report provides a background and analysis of military commissions rules under the MCA. The report identifies pending legislation, including Senate-passed S. 1390, and describes proposals suggested by the Obama Administration.

08/21/09: The American Civil Liberties Union and the New York Civil Liberties Union filed a lawsuit today demanding disclosure of a legal memo from the Justice Department Office of Legal Counsel (OLC) that reportedly addresses the constitutional rights that Guantánamo detainees could legally claim during military commission proceedings in the US. The memo, drafted in May 2009, also reportedly addresses the admissibility of statements obtained through coercion in those proceedings. The ACLU filed the lawsuit in the US District Court for the Southern District of New York under the Freedom of Information Act (FOIA).

07/30/09: Opinio Juris has an analysis piece by Deborah Pearlstein discussing the details of passed amendments to the Military Commissions Act of 2006, including procedural protections and prosecution forum decision factors.

07/16/09: The Wall Street Journal reports that at military commission hearings at the military detention camp Wednesday, the administration sought delays in proceedings, as it reviews detainee cases and revamps a process that President Barack Obama criticized as unconstitutional. 

07/08/09: The New York Times reports that Obama administration lawyers said Tuesday at a Senate hearing that detainees prosecuted by military commissions should have some of the same constitutional rights as American citizens tried in civilian criminal courts. Republicans on the Armed Services Committee argued that foreigners now detained on terrorism charges at the American detention center at Guantánamo Bay, Cuba, did not deserve those constitutional protections.

07/07/09: Jurist reports that retired Rear Admiral John Hutson, formerly the US Navy's Judge Advocate General, argued Tuesday that the Military Commissions Act of 2006 should be repealed rather than reformed. Hutson said that although he was an "early and ardent supporter of military commissions," the process created to try enemy combatants "did not live up to the traditions" of the Uniform Code of Military Justice and had become a "significant distraction for the military."

06/29/09: The Wall Street Journal reports that the Justice Department has determined that detainees tried by military commissions in the U.S. can claim at least some constitutional rights, particularly protection against the use of statements taken through coercive interrogations. Military prosecutors have said involuntary statements comprise the lion's share of their evidence against dozens of Guantanamo prisoners who could be tried.

06/24/09: CQ reports that Senior lawmakers on the Senate Armed Services Committee are negotiating legislation on military commissions for detainees, with an eye toward adding it to the fiscal 2010 defense authorization measure. Sen. Lindsey Graham (R-SC) said one sticking point is how to treat detainees whom the administration can neither put on trial nor safely release. Graham favors establishing a new national security court that would review the initial determinations of a detainee’s status, as well as periodic review of the status of detainees who are held without trial indefinitely.

06/23/09: National Security Advisors has an article arguing that Article 36(b) (which governs Military Commissions, such as those undertaken at Guantanamo) should be amended to provide that all rules, procedures and regulations for military commissions be uniform so far as practical, and that, before the President adopts any rules, regulations, and procedures that differ from those governing trial by courts-martial, he must submit to Congress a justification and explanation of why the rules governing courts-martial are not practicable. 

06/15/09: Jordan Paust of the University of Houston Law Center argues in a Jurist commentary that a reconstituted military commission at Guantanamo Bay set up to only prosecute aliens would necessarily violate bilateral treaties, create a "denial of justice" for aliens under customary international law, and violate principles of human rights law established by treaty and custom.

06/12/09: The Weekly Standard reports that the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at US detention facilities in Afghanistan. HT to Security Debrief.

06/12/09: The Wall Street Journal reports that a Pentagon decision to not advise Guantanamo Bay prisoners of their rights during questioning that began in 2006 could prove a legal stumbling block in trials.

06/09/09: Reuters reports that the Obama administration is considering seeking a change in the military commission trials for Guantanamo Bay terrorism suspects to allow those who face the death penalty to plead guilty without getting a full trial.

05/31/09: Opinion Juris has a post by Deborah Pearlstein, discussing the details of what legislation the Obama administration might advocate for, including how the administration might amend the MCA in order to try detainees before military commissions.

05/26/09: The Miami Herald reports that President Barack Obama is still deciding where to prosecute the the death penalty cases against five men accused of orchestrating the 9/11 terrorist attacks. The cases are currently pending in the military commission system, but Obama is considering moving them to federal court.

05/25/09:  The San Francisco Chronicle reports on some of the differences between trials in military tribunals and civilian criminal courts.

05/16/09: The LA Times and Miami Herald report that President Obama's decision to revive military tribunals to try suspected terrorists will likely fail to erase the taint of illegitimacy over the courts despite efforts at reform, civilian and military legal experts said.  "I believe that the rules and procedures can be fixed so as to provide an actual fair proceeding. But what I don't think they can salvage is the perception that the commissions are an illegitimate and unfair process," said Air Force Maj. David Frakt.

05/15/09: Jurist reports that President Barack Obama announced today that he is reinstating the controversial military commission system to try some Guantanamo Bay detainees. Obama said that there will be changes to the system to increase defendants' rights, including barring statements obtained under harsh interrogation methods and making it more difficult to introduce hearsay evidence. The administration will also seek a 90-day continuance of pending proceedings to implement the new rules and ask Congress to make changes to the Military Commissions Act of 2006.

05/15/09:  The New York Times, Miami Herald, LA Times and CNN report that President Obama has decided to resurrect the military commission system that former President Bush created to try suspected terrorists, but will ask Congress to expand the rights of defendants to contest the charges against them. Obama will ask for an additional 120-day delay in nine pending hearings before commissions so the administration can revamp the procedures to provide more due process to detainees. The new system would limit the use of hearsay, ban evidence gained from cruel treatment, give defendants more latitude to pick their own lawyers and provide more protection if they do not testify.  During the presidential campaign, Obama called the military commission system put in place by Mr. Bush “an enormous failure” and vowed to “reject the Military Commissions Act.”

05/09/09:  The Washington Post reports that the Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections.  The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys.

05/08/09:  Salon features an opinion piece by Denny LeBoeuf in which he argues that, "any purportedly retooled military commissions will be the same discredited proceedings that I observed before President Obama issued his promising orders to halt the injustice...These proceedings, in principle and in practice, are completely inconsistent with the fundamental principles of American justice and with U.S. treaty obligations. They are subject to political influence, and rely on confessions or witness statements extracted by torture and on secret evidence that a defendant cannot see or rebut."

05/04/09:  The Washington Post reports that the fear that some Guantanamo cases are not prosecutable in federal court has sharpened debate within the Obama administration about the need to maintain military commissions, in which the rules of evidence are less stringent, according to sources involved in the discussions. Obama criticized such tribunals during the campaign, but some of his top officials, including Defense Secretary Robert M. Gates, have said in recent days that the commissions remain an option.

05/02/09: The New York Times reports that the Obama administration is moving toward reviving the military commission system for prosecuting Guatanamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself. The first public moves could come as soon as next week, perhaps in filings to military judges at the United States naval base at Guantánamo Bay, Cuba, outlining an administration plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.

03/17/09:  The Associated Press reports that old terror case files are being dusted off as the Obama administration considers prosecuting high-profile Guantanamo Bay detainees in civilian courts, focusing on crimes allegedly committed before September 11, 2001. The tactic could allow the government to limit testimony about harsh, more recent interrogations and avoid revealing sensitive intelligence about al-Qaida.  HT to How Appealing.

03/16/09: In the Harvard International Review, Maj. Shane Reeves (US Army) argues that those who believe trials in the US federal court system will cure all the perceived injustices of the military commissions is misguided for two reasons.  First, the detainees were captured in combat, and the information collected about them (perhaps by foreign nations) was never envisioned for use in a US court and may not conform to our evidentiary requirements.  Second, the international community may not perceive a federal trial as more fair than the abandoned military commission system; no matter the forum, an American-centric trial will be viewed with skepticism and perceived as the United States invoking "victor's justice."

03/15/09: In Homeland Security Today, US Coast Guard Academy Law Professor Glenn Sulmasy argues that civilian courts are not the proper venue for trying alleged Al Qaeda combatants currently detained by the US government.

02/16/09:  The Washington Post reports that as officials try to decide who can be released and who can be charged, they face a series of murky questions: what to do when the evidence is contradictory or tainted by allegations of torture; whether to press charges in military or federal court; what to do if prisoners are deemed dangerous but there is little or no evidence against them that would stand up in court; and where to send prisoners who might be killed or tortured if they are returned home.  The article goes on to give details on four such specific cases which illustrate the various legal problems.

Thread: Prosecution of Guantanamo detainees and reform of Military Commissions Act (see also "Closing Guantanamo" thread)