2/19 Motions Session #7: Picking the Pool

n AE172, Richard Kammen challenges the Convening Authority’s power to select members of the military commission, come trial-time.  (This incorporates some arguments from another filing, AE117, regarding the officer's impartiality---or lack thereof.)  So far, 37 possible panel members have been designated.

The motion invokes a familiar defense theme:  in courts martial, convening officers are charged with maintaining good order amongst the ranks.  Not so here, where the Convening Authority’s sole job is to organize criminal cases at Guantanamo and attend to those---among other things by approving plea agreements.  (Kammen goes so far as to hint that a plea deal might well be announced in another military commission case; he surely has in mind Al-Darbi, which will see arraignment tomorrow.)   All this is problematic for Kammen, given the Convening Authority’s demonstrated lack of neutrality.  Because of it, we can’t have the Convening Authority in the business of selecting jurors. That arrangement violates the Military Commissions Act, U.S. treaty obligations, and the U.S. Constitution, in the defense lawyer’s view.  He thus asks for an abatement, pending congressional re-tooling; or for judicial order requiring a random pool of military officers to travel to Guantanamo, come time.

But the power to select members initially, Judge Pohl says, is reserved to the Convening Authority and not to me.  Well then, Kammen says, not if you hold that the Convening Authority is compromised legally; perhaps then the Secretary of Defense could do the appointing, or even you could, your honor.  Bear in mind that, the Convening Authority uses all kinds of special criteria in selecting people---among other things, “judicial temperment.”  Well, how in the world can that be ascertained?  How do we know the determination won't be arbitrary?  No matter how much he tries, the Convening Authority has shown his bias: he already has determined that this case is prosecution-viable, and a plausible vehicle for the death penalty; but he also determined that Al-Darbi shouldn’t face the death penalty.  There’s just no neutrality there, Kammen intones.  And the guy has only detailed 37 people as would-be members thus far.

None of this impresses Judge Pohl.  The latter says that if 37 members are disqualified, then we’ll get more would-be members.  The court steers Kammen, after a while, back to the issue raised by his motion: legal problems in the Convening Authority’s appointment power.  Kammen cites the Massey case in the Supreme Court, which rested heavily on a state supreme court justice's perceived bias.  Well, that very perception is profound in this case, he says: this Convening Authority has approved capital charges, not granted a single defense request for resources in its entirety, and so on. The military judge: doesn’t it matter that one person, while serving as Convening Authority, approved charges; but another person, the Navy’s General Counsel, now holds that office?  Not to Kammen.  Again, for him, convening authority mechanisms make sense only within a military unit, where discipline is key.  

Lt. Bryan Davis takes the podium.  His analysis is clear and straightforward: the Military Commissions Act empowers the Convening Authority to appoint members, according to various criteria.  That’s the same process used in courts martial; and in that context, courts have found that the appointment mechanism doesn’t offend due process.  (Is it true that the duties of commission Convening Authority are slightly different, as Kammen suggests.  But, says Davis, these differences only insulate the office, and ensure procedural fairness.)  The key is the preservation of peremptory and for-cause challenges; the defense and prosecution can use those, in ultimately determining who will and will not serve on the panel.  In this way, the Convening Authority merely “stocks the shelves.”  The military judge asks about the Convening Authority’s application of the “judicial temperament” standard; Davis isn’t sure, as he obviously wasn’t privy to the Convening Authority’s process.  A few remarks more, and the prosecutor urges the court to reject this motion, much as he rejected AE117.  Jury selection will take care of any problems down the road.

Kammen, in reply, seizes on the “judicial temperament” issue, and the question of documents: if they exist, then surely the prosecution has seen them.  And that's even more reason to think the Convening Authority is on the prosecution’s side.  For the defense lawyer, this issue is part and parcel of a larger structural failing in the commissions---which lend vastly greater resources to prosecution than to defense.  Why doesn’t Kammen’s crew get to review the Convening Authority’s process for finding possible members?  For his part, Davis tells the court that the prosecution has no documents bearing on the Convening Authority’s selection of the pool.  But he’ll take Kammen’s remarks as reflecting a request for discovery, and go from there.

The motion is...under advisement.  Onward.