Nashiri Motions Hearing #4: Are Some Defendants more Equal than Others?

Before we tell you about the outpouring of love that Lawfare is getting at the Nashiri hearings (stay tuned for that!), we've a bunch of other matters to report. The court now turns to the first of the constitutional questions it will hear: Motions AE 046 and AE 047. Defense lawyer Michel Paradis, having not been disqualified, gets up to argue that the Military Commission Act violates Equal Protection and that limiting the jurisdiction of the commissions to aliens violates the Define and Punish Clause. The whole intent of MCA, Paradis says, was to deny equal justice before the law. The two motions address that in different ways, he says. He starts with the equal protection issue, describing the MCA as an exercise in invidious and irrational discrimination. If there is one truth that is self-evident, he says, it is that all men are created equal, endowed by their creator with certain inalienable rights--chiefly, life. Nashiri, however, has been brought here under a statute that says he can be deprived of life, even though a citizen would not be deprived of life in that way. The reason is that Congress understood that it was making a criminal procedure system that did not treat people equally. If a citizen of Pennsylvania or Texas were brought before a commission, he would have congressmen who would object to the use of hearsay, to the stricter CIPA rules than those allowed in federal courts or in courts martial. The congressional decision to limit jurisdiction to aliens was done for reasons of political self-interest alone. And we know this, Paradis says, because Congress said it. The law of war does not discriminate between Americans and non-Americans.  The problem with the MCA is that the U.S. has applied the laws of war in a discriminatory fashion--creating second-class justice for aliens. And this limitation based on alienage is based on irrational self-interest. Separate is not equal, Paradis argues. We do not segregate in the U.S. any more. We fought long and hard for that principle. Whether you are the son of an immigrant or a well-established Daughter of the American Revolution, you sit in same chair. Judge Pohl notes that the government says that this is a facial challenge. Do you agree, he asks Paradis? He does. There are two cases from the Court of Military Commissions Review (CMCR), Judge Pohl notes: Bahlul and Hamdan. Haven’t they addressed this issue? Hamdan did, Paradis acknowledges, and he adds further that the CMCR there rejected a facial challenge like Al-Nashiri’s.  Am I not bound by that ruling, Judge Pohl asks?  You are, Paradis concedes. Judge Pohl says he understands that the next level of appeal is ongoing (the D.C. Circuit) and that there might be further review.  We can revisit the matter, he says, if either the Supreme Court or the D.C. Circuit takes a different path. But in the meantime, how can I rule for you without contradicting the appellate courts? Judge Pohl says he understands that Paradis needs to raise issue, but isn’t it foreclosed by precedent? Paradis once more responds that Judge Pohl is, indeed, bound by the CMCR’s ruling.  But the facial challenge here is different, he says, because this is a death penalty case.  And that takes the case outside of what was before court in United States v. Hamdan and United States v. Bahlul.   Wait, says Judge Pohl, I thought your facial challenge must mean that the MCA cannot be constitutional under any circumstances - capital, and non-capital.  Right?  Paradis says he misspoke if he said the challenge was purely facial. Our challenge is facial, but it also goes to the whole act as applied to Mr. Al-Nashiri.  He adds that the accused here challenges parts of the MCA that were not before the CMCR in United States v. Hamdan.  That case, after all, was prosecuted under the 2009 MCA’s 2006 predecessor. Judge Pohl stops him again: Isn’t the 2009 law the same as the 2006 law, as far as these motions go?  As far as personal jurisdiction goes, yes, replies Paradis. The lawyer turns to helpful authority, and cites some cases that cut against the CMCR’s view. Judulang v. Holder, says Paradis, undermines the CMCR’s application of the rational basis standard of equal protection review.  The CMCR’s analysis was basically deference, he argues. The decision said that Congress and the President have broad foreign affairs powers, and that this compelled the CMCR to conclude that the MCA constituted a reasonable exercise of congressional power.  But Judulang did just the opposite, argues Paradis, and in a case also involving aliens and the use of foreign affairs authority.  There as here, the law was arbitrary, but was invalidated by the Supreme Court and without regard for the shared authority of the political branches. It is the penalty more than the case law that seems to interest Judge Pohl most: What if I disagree with your “death is different” argument? Is your other argument that there is no rational basis for the distinction between a citizen and an alien, in this case? The “death is different” claim, says Paradis, is especially important.  The McKleskey decision presupposed that invidious, actual discrimination in capital punishment would raise significant Eighth Amendment concerns. Or, to put it as Justice Powell did in his opinion in Furman, another death case: the death penalty cannot be freakish and irrational. The decision to subject noncitizens to differential treatment in the application of capital punishment is both. Judge Pohl comes back with a return volley.  So, he asks, if the death penalty is taken off the table, then the statute is lawful?  Paradis says that the statute would then come within the CMCR’s analysis in Hamdan. His key point, though, is that there are two different systems woven into the MCA, one capital and the other non-capital.  Nothing unsual there, though, says Judge Pohl. Correct, answers Paradis, but part of our challenge stems from the fact that this is a death case. Then he sits down, and yields the floor. The chief prosecutor, Mark Martins, rises. The defense’s facial challenge must fail, he says, because the act provides equal protection and full and fair protection for all, including the accused. First, as to the precedent: as the Court noted to Paradis, the CMCR has twice squarely rejected the defense’s position in United States v. Hamdan and United States v. Bahlul. In no relevant respect are those accused differently situated than Al-Nashiri. The prosecutor then turns to the legal standards.  He points out that Paradis’s brief dealt chiefly with strict scrutiny, but that his argument is focused on the rationality analysis used in Judulang and other cases. The latter is the right test to use, and it asks whether the statutory distinction bears a rational relationship to a legitimate governmental purpose.  (Martins here is careful to note that in opposing Paradis’ remarks, he is simply assuming  - but not arguing - that, for Al-Nashiri’s purposes, the Fifth Amendment’s equal protection principles are applicable.) Then comes the first question for Martins from Judge Pohl, one that, he says, is likely to permeate this case: The accused obviously has statutory rights. But, the Court asks Martins, other than habeas corpus rights, is there any authority--case law--holding that Guantanamo detainees have rights under the Constitution? Martins says that Boumediene was a habeas case, but as far as other cases go--no, he is aware of no such authority. He adds that the CMCR assumed that the Fifth Amendment would apply, but didn’t decide the question; Kiyemba certainly did not acknowledge additional rights. That’s a good, if temporary, segue into another issue that is buried in the day’s voluminous briefing and that Martins wishes to preview: the federal Ex Post Facto Clause also obviously operates as a structural constraint on congressional power. That applies here, Martins says, in that the clause limits Congress’s authority to define and punish. That said, he knows of no case giving GTMO detainees constitutional liberties. The prosecutor returns to the legislature’s objectives in passing the MCA, and the rationality of the differential treatment of commission defendants.  He refers the Court to the Ferreira case, which construed the hostage statute and included a distinction based on alienage--and upheld the law on rational basis grounds. So too in a Second Circuit case relating to FISA.  Martins adds that Congress here is not making distinctions between non-citzens and citizens.  It is instead seeking to hold accountable in one of two fully fair systems those who by their own actions fail to meet basic laws of armed conflict, including the Geneva Conventions. While Martins is at it, he points out that Geneva itself draws distinctions, and that those are woven into the MCA’s jurisdictional provisions. Those who carry arms openly, obey command authority, and so forth, are not subject to trial under this statute. The accused is instead brought into the MCA by virtue of his own actions. And in doing so, Martins emphasizes, he does not forfeit protection, but instead receives a different set of protections: many statutory rights under the MCA. Those rights were important, as the legislative history shows: In it, argues Martins, the judge will find many legislators insisting on fairness, but insisting as well that that Congress should establish a court that takes account of individuals’ law of war violations.  That’s what motivated Congress here, not any invidious discrimination. By the look of it, the mention of legislative history has stirred Judge Pohl’s inner Justice Scalia. How much weight do I give to that sort of thing, he asks Martins. We have plain language on the one hand, and lots of statements by people in Congress, said for various constituencies, on the other. At end of day, doesn’t text matter most? Martins agrees that it does. He only has emphasized the history because the defense has raised it in its papers, and made arguments concerning legislative intent. There is clear statutory language here, and this reflects a legitimate legislative purpose, and a rational means to achieving it. Martins then adds that aliens who fight unlawfully have fewer connections as a class to the United States and its entities of government; they also tend not to be located in the United States, do not vote, and do not have the same duties as citizens. Those differences supply rational, legitimate reasons for trying the accused and similar individuals in military commissions.  That logic is implied by Eisentrager, Martins emphasizes. There, the Court said that our law does not abolish distinctions between citizens and noncitizens, or those between enemies and allies. And that’s what Congress recognized here. Martins then moves to the Defense’s other facial challenge, Motion AE47, which sounds in Equal Protection but implicates Common Article 3 and the Define and Punish power. The prosecutor only has a few quick points, he says. First, the MCA is consistent with Common Article 3. The defense has cited Justice Kennedy’s concurrence in Hamdan v. Rumsfeld, and its “practical need” language, and that’s certainly relevant. But Hamdan had to do with executive-only commissions. Now you have Congress involved, and a greater measure of political accountability. Another distinguishing feature, says Martins, is that Kennedy’s opinion says that the elected branches are best positioned to identify the proper legal principles to use, and to balance the national interest with that of international justice. Breyer’s concurrence, for its part, also beckoned Congress to legislate--and it did just that. The prosecutor’s second point is that Common Article 3 does not call for all the same procedural bells and whistles as a court martial. That is true, he says, because under the Third Geneva Convention, combatants who do not violate the law of armed conflict receive POW treatment, and must be tried by the same courts and same procedures as those employed by the detaining power. Common Article 3 is different: the high contracting parties deliberately omitted language that would have required the “same courts, same procedures” approach, and instead opted for its now famous requirement of mere “regularly constituted” courts. That signifies the barest of protections, far fewer than the rights afforded under the MCA. Judge Pohl asks whether there is a timing element in Common Article III. That is, does it matter that these commissions were established after the accused’s alleged actions? That concern does not follow from Hamdan, says Martins; the correct rule is that the same standards have to be used to establish the procedures for trial.  So “regularly constitued” goes to procedures, not to the ex post establishment of a court, Judge Pohl asks?  Martins clarfies that this Commission has been “regularly constitued,” because it was created in accord with legal standards that long predate this conflict. Martins argues in closing that there is no support for one of the defense’s main claims. There is no authority, Martins says, for the idea that a peremptory norm can cause a later-in-time statute to be struck down. And the MCA was enacted well after Common Article 3 entered into force. Martins here refers to the Charming Betsy canon: statutes are to be construed in accordance with international law when possible, but if there is a conflict, then the statute will prevail, if enacted subsequently to the relevant customary international principle. The defense motions, Martins concludes, should fail. Paradis rises for rebuttal.  He begins with a point of emphasis: he argued mostly rational basis, rather than strict scrutiny review--though the latter is developed in the defense’s brief.  Strict scrutiny naturally comes into place when Congress employs suspect classifications, and alienage very much is a suspect class.  That takes the defense attorney back to the famed footnote four of Carolene Products, and its talk of “discrete and insular” minorities.  He has emphasized rational basis review in oral argument in order to make the point that the MCA flunks on even the lowest equal protection standard--and that it would therefore naturally  flunk the more stringent one. Which brings us back to rationality. What is rational, Paradis asks, about the accused being tried here, while Ghailani was tried in a federal court in New York? He’s listing similar examples when Judge Pohl jumps in.  Isn’t the answer just the choice of jurisdiction?  It is, says Paradis, but at some point that becomes forum shopping. That strikes Judge Pohl as a bit too much. Soldiers are subject to trial in courts martial and in state or federal courts, he says, depending on the circumstances. The same is true for detainees, putting aside the congressional restrictions. Apart from that, they can be prosecuted in federal courts, or here in GTMO. Judge Pohl's mention of the legislative restrictions returns Paradis to the question of discrimination. Again, he says, the legislative history is relevant, and reflects discrimination on the legislature’s part.  This is not a facially neutral law, it is a invidiously discriminatory law, he says. Judge Pohl wants to ask the same question of Paradis that he asked of Martins: Other than the Suspension Clause, has any court given individual, constitutional rights to any detainee here at GTMO?  Paradis thinks not, but reminds the court that foreign nationals arrested here are frequently taken to federal courts in Florida and Virginia. True, says the Court, but once in the United States, their status changes, right?  No, says Paradis: if one thing is clear from Boumediene, it is that Guantanamo is very much the United States.  Then why haven’t we seen any courts extending rights to detainees?  Paradis ought to know, says Pohl; he does this for a living. Asks Judge Pohl, aren’t detainee rights almost entirely statutory?  Paradis says no.  Kennedy’s opinion says that the Constitution has force here in Guantanamo, so the question is how and when the detainees’ rights will apply.  It is true that the standing of a foreign national to bring a civil action asserting constitutional rights can be different and more limited than the ability of a defendant to vindicate his rights in a U.S. court.  According to the Supreme Court, if you are going to prosecute, then the defendant must be given his rights. That’s a key difference, Paradis says, between the Eisentrager defendants and those at Guantanamo. The latter is not Germany or China, but instead more like the United States - or, as Paradis puts it, a federal enclave like Washington, D.C. I understand the legal status of Washington, D.C., says the judge. But, if the defense’s position is that detainees have the full protections of the Constitution, then that would include the right to a speedy trial? Potentially, yes, says Paradis. A trial by jury? Yes again, but, Paradis says, there are exceptions: sometimes you have a right without a remedy.  Pohl is confused: Have you moved for a speedy trial?  “Not yet,” is the lawyer’s answer.  Even if Guantanamo were quasi-foreign, Paradis says, then his position would still prevail.  Remember Kennedy’s concurrence in Verdugo-Urquiduez, where he said that the Constitution’s foreign application would depend on whether a given right, if acknowledged, would be anomalous or impractical. The lawyer then moves to the peremptory norm underlying his other motion. Common Article 3 was written against the backdrop of abuse against our servicemen, he says - and that has implications for Al-Nashiri.  Paradis reminds Judge Pohl that, during World War II,  several captured pilots were waterboarded, put in stress positions, forced to stand naked, deprived of food, and forced to signed confessions in foreign languages.  Then they were tried by military commission and most were executed.  Four years later, we tried all the trial’s participants for denying the servicemen equal justice under law.  The same problem present there are present here. Pohl wants to hear more about the “regularly constituted” issue.  Assume, he says, that Common Article 3 sets up a different legal standard than the one we have in the Commissions. Does that becomes U.S. law? Yes, Paradis answers. Then, the judge says, Congress passes the MCA, with its own standard.  If there is a conflict, then doesn't the MCA prevail?  Paradis’s answer is that “it depends”--specifically, on which power Congress has used.  The Define and Punish Clause, according to the CMCR, is the legislative basis for these Commissions. A sudden shift in the questions.  The Court asks, what is a “regularly constitued” court in, say, France? For Paradis, the answer comes from Kennedy in Hamdan: “regularly constitued” means that the court employs those procedures that were established before the time of crisis.  So you disagree with the prosecution’s view as to timing?  Paradis does.  You must apply procedures and values that predate it, absolutely, he says. Judge Pohl wants clarification: But is it necessary that the court system be already in place, or is it that the system latter set up to prosecute must itself comply with previously set procedural requirements?  Paradis seems to accept that this would be okay, and so indicates by analogizing the matter to the admission of new states into the Union.  Sometimes, cases from the territories would be retried in lower state courts, but if the procedures had not changed much between the two, there wouldn’t be a problem. That’s a side issue in any event, says Paradis, because these commissions are anything but regular.  The MCA says that the commission rulings cannot seep out, or be relied on, by any court martial or other court.  That’s not regular.  That citizens cannot be tried in a commission is a sign of irregularity, too. Paradis's citizenship point reminds Judge Pohl of one of Martins’ arguments, about which he presses Paradis.  You’ve relied on Hamdan, Judge Pohl says, Kennedy’s remarks in particular.  Did he mean that the same principles should apply to executive-only and legislatively-sanctioned commissions, like the MCA?  The passage dealt with Common Article 3, responds Paradis.  Okay, says the judge. But do our courts martial procedures satisfy Common Article 3?  They do.  Then where is the irregularity, given that section 948 of the MCA incorporates general court martial practice?  Well, Paradis says, if there were no exceptions, this was a court martial by another name. A technical glitch pauses the proceedings for a minute.  When they resume, the Judge returns to the courts martial practices, as modified by the MCA. Are the MCA’s deviations so important?  They may or may not be, Paradis says, but the question is not whether deviations are ever possible; they are.  The question instead is whether the deviation is required as a matter of military necessity. And there is no such necessity here. There is no lawful reason for Congress to make different trial rules for non-citizens like this accused. Wait, says Judge Pohl, it is the status of the accused, not the procedures being employed, that matter here?  No, the procedures can make court not “regularly constitued,” argues Paradis.  Judge Pohl seeks clarity once more: on the Common Article 3 violation, that is unconnected to the status of the accused.  The question there is about the status of the tribunal.  And in that regard, Pohl asks, Paradis’ position is that the exceptions to court martial procedure in the MCA together make the Commission not “regularly constituted” under Common Article 3? No, says, Paradis,that’s not our motion.  We may bring such a motion, and on those grounds.  But now, he says, we’re talking now about limiting commission jurisdiction to non-citizens. Judge Pohl jumps in to note that he’s not encouraging Paradis to file any particular motion, and that he should file whichever he wishes. And that brings the defense lawyer’s argument to a close. Rebuttal begins for the prosecution.  Since we share the burden here, Martins says, he wishes to add a few points.  The defense cited cases, all of which involve states employing alienage distinctions.  That federalism aspect is important.  If alienage distinctions are going to be made, then they may and must be made only by the federal government--and Congress has acted here, lawfully.  Martins then seizes an opportunity to pin down precisely what makes this accused different.  The answer?  For Martins, it is the accused’s own choices.  The MCA’s jurisdictional provision requires not only non-citizenship, but also the status of unprivileged enemy belligerent: the accused, and anyone else under commission jurisdiction, must violate the laws of war.  Equal protection under law does not mean identical outcomes for all categories of accused, Martins says.  It instead means equal protection, and that is satisfied by these procedures. He then asks Judge Pohl to look past Paradis’s inflammatory rhetoric about the statute.  The Court heard much "individious" talk--about our airmen in Japan, and so forth--from the defense, but those are talismans. “Invidious,” Martins says, means calculatedly malevolent.  But we’ve established that there was a legitimate purpose for the statute’s enactment, not any calculated, bad purpose, Martins argues. Last but not least is the “regularly constituted” question. The prosecution agrees, Martin continues, that the relevant language can be found in Kennedy’s concurrence in Hamdan.  The question is whether the executive, in setting up these commissions, had relied upon standards that were in place before this crisis, and acted pursuant to congressional authority and with its oversight.  Justice Kennedy’s point was deference to the legislature, Martins argues: the justice said that is up to our political branches to create a commissions system.  And they have done that, in the form of the MCA, and thus created a “regularly constituted” court. There’s nothing further from either side, so Judge Pohl takes motions AE46 and AE47 under advisement.  He tells the parties that his rulings will be issued “in due time.”