8/22 Motions Sessions #7: Is the Convening Authority Constitutional?
Our recess-ette is done, and all the same folks from earlier are here---save Al-Hawsawi, who remains absent.
Does the Convening Authority unconstitutionally act as both prosecutor and judge at Guantanamo? The question arises in connection with AE091, a defense motion to dismiss. Posing it forcefully is a task for J. Connell III, one of the lawyers for Ammar al-Baluchi.
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Our recess-ette is done, and all the same folks from earlier are here---save Al-Hawsawi, who remains absent.
Does the Convening Authority unconstitutionally act as both prosecutor and judge at Guantanamo? The question arises in connection with AE091, a defense motion to dismiss. Posing it forcefully is a task for J. Connell III, one of the lawyers for Ammar al-Baluchi.
It’s a facial challenge, he says, stemming from the unlawful mixing of prosecutorial and judicial functions. That mixing is evident on the face of a signature Connell demonstrative, which summarizes various of the Convening Authority’s powers. It can, for example, confer witness immunity and receive legal advice from the Chief Prosecutor’s supervisor (like a prosecutor); or detail panel members or suspend a sentence (like a judge). That can make for unfair outcomes, as when the Convening Authority approves a pretrial agreement with one defendant, who must later testify against a co-defendant. Anticipating a counterargument, Connell emphasizes: it matters not that Convening Authority procedures have been found lawful in the courts martial setting, given the concededly constitutional purpose of disciplining members of the armed forces. (He has in mind the D.C. Circuit’s Curry decision, which batted away a due process challenge to the UCMJ’s convening rules.) There’s no disciplinary hook for the commissions, however, says Connell. Those seek only retributive justice, against accused in terrorism cases. Overall point: the legal justifications for the Convening Authority mechanism, though persuasive with regard to courts martial, just don’t hold up here. The court lobs a question or three to Connell, which he answers along the above lines---and then he sits.
With due respect to Mr. Connell’s advocacy, says the Chief Prosecutor, we will rest on our briefs---subject, of course, to your questions. Connell, good-naturedly, declines an invitation to “rebut himself,” as he puts it.
So much for the roles of prosecutor and judge. AE091 thus formally enters the trial judiciary’s hopper. Once it does, court and counsel housekeep a bit, to no one’s surprise: it appears that Bormann’s client, Walid Bin Attash, will supplement a pending motion, the latter filed by lawyers for another accused, Mustafa Al-Hawsawi. Connell, explaining, cites the defense’s inability to seek joinder via email. At any rate, we’ll now move on..jpg?sfvrsn=d5e57b75_5)
