8/23 Motions Session #1: Last Words on Define and Punish

Last day of the five-day session, y’all.  Resplendent-in-robes time arrives, and the military judge notes that all five accused are absent.

The traditional, Swann-Massucco dialogue ensues---the latter telling the former that, yes, all five accused were advised of, and still knowingly and voluntarily waived, their rights to take in the proceedings live and in person.  The court so finds, after confirming that no accused indicated a desire to show up in the afternoon.  (No surprise there, given Judge Pohl’s irritation yesterday, at the sometimes-here-sometimes-not attendance of certain accused.)

Will we hear more about the Military Commissions Act’s compatibility with the Constitution’s Define and Punish Clause? Yes: J. Connell III, al-Baluchi’s lawyer, will say a few words more on AE104, a defense motion to dismiss.  Ditto the Chief Prosecutor, Brig. Gen. Mark Martins, who notes that the prosecution soon will file supplementary, favorable authority to the court.

The two parties’ analyses diverge in this way, says Connell: we have different views of what amounts to a “regularly constituted court” under Common Article 3.  For the government, one must simply consult the background legal principles, and see if court procedures were enacted pursuant to those. But that’s contrary to Hamdan, which set a “regularly constituted court” baseline for the military procedures and offenses in place at the time of the offense.  The normal set-up, under that case, consist of courts martial.  And Hamdan insisted on an explanation of a practical need to justify departures from courts martial practice.  No practical need, no compliance with Hamdan, no compliance with international law.  The military judge wonders why the United States should be left with the option of only courts martial or federal civilian courts; Connell rejects the premise, again underscoring the absence of a need, practical or not, to limit commission jurisdiction to aliens.  A broader commission jurisdiction might have sufficed, he seems to say.