Nashiri Motions Hearing #9: Bill of Attainder Time

Break's over, y'all. It’s Bill of Attainder time at Guantanamo. Paradis begins this longest of long-shot motions by identifying his legal view of the federal ban on bills of attainder. The ban’s essence, he says, is that it is not Congress’s job to say that some individuals are more deserving of the death penalty than others.  That divvying task instead belongs solely to the courts. And there are three reasons why this law predetermines punishment, and thus robs the judiciary of its authority and the accused of his rights, Paradis says. For one, the statute punishes a class of defendants on the basis of their past conduct.  Or, to put it another way, Paradis says, the MCA is ultimately designed to deprive Al-Nashiri of a truth-finding proceeding before he is sentenced to death.  In other cases, truth has been the emphasis: the right of confrontation, for Justice Scalia, is the crucible of truth, he says.  Rights against the admission of coerced evidence, to a speedy trial, and to judicial independence all likewise help to optimize the truth-seeking process.  But, Paradis says - and he means no disrespect to the court - this commission is appointed by one person, himself designated by a politically appointed Secretary of Defense.  The Secretary’s designate appoints the judge and the jury, and determines the death sentence. That happens every day in courts martial, interjects Judge Pohl.  Sure, rejoins Paradis, but there is a purpose behind courts martial: to ensure discipline and good order among the ranks.  That’s not the goal here.  So what, asks Judge Pohl? Well, the lawyer explains, in the court-martial setting, the commander is presumed to have his unit’s interests at heart; the servicemembers in the unit depend on the commander not only to ensure discipline but also to protect their rights.  The Convening Authority in this commission naturally does not care about the discipline and good order of Al Qaeda; he’s a civil servant accountable to the secretary only.  That’s still not good enough for the Court, who asks about a U.S. Attorney.  A federal prosecutor obviously does not have the defense’s interest in mind, or that of Al Qaeda.  True, says Paradis, but a U.S. Attorney does not appoint a judge, select the jury, or determine defense resources - as the Convening Authority does in this case.  And a U.S. Attorney, moreover, faces more structural guarantees of independence, like the grand jury. Judge Pohl does not seem to like what he sees as cherry picking.  You pick different facets of civilian courts and courts martial, Judge Pohl chides Paradis, and then you note that the commissions do not employ those and must therefore be invalid.  The commissions use, in essence, the same rules that we use every day for courts martial; are the courts martial problematic?  According to Judge Pohl, Paradis emphasizes the fact that the Convening Authority makes decisions about resources available to the defense - but that procedure, too, is everyday fare for a military court martial.  So, the judge says, you don’t like the resource allocation procedure.  That is okay.  But it is commonplace.  And somehow--and Judge Pohl is not sure how--the resource allocation mechanism transforms the MCA into a bill of attainder? The judge’s skepticism is met with more disagreement from Paradis, who says that the commissions’ court martial-esque attributes are not what makes the MCA unconstitutional.   Again, the commission is not a court martial, which is preoccupied with discipline and good order. The purpose of the commission is simply punishment of a class of non-citizens.  And when punishment is separated from truth seeking, you have an unconstitutional bill of attainder. Judge Pohl interrupts again, this time to take issue with the defense’s description of the Convening Authority.  The only role the Convening Authority has is to select the chief trial judge, who in turn selects the trial judge.  The Convening Authority simply does not select the judge for every case: Judge Pohl, for one, says he did not receive a letter saying “hey Jim, try this case.”  Paradis acknowledges the judge’s point, and apologizes.  But he still has concerns about independence: that of the jury, from the judge, from the prosecutor.  The return again from Judge Pohl: aren’t state judges elected?  Yes, but they are subject to rules of judicial conduct, according to Paradis.  Again, Pohl sees no issue, as commission judges must obey the same rules, as must all judges. It is a structural argument, Paradis clarifies.  When the structure is not built to ensure confrontation or lacks institutional safeguards to ensure independence, the suggestion is that Congress is more interested in punishing a defendant then in finding out what really happened.  It is about punishment, about imposing the death penalty.  Paradis emphasizes that, during the MCA’s development Congresspeople and Senators mentioned Al-Nashiri by name, and indeed referred to motions his defense team had filed in this court.  That is the sort of harm that the Bill of Attainder Clause was meant to prevent.  The temptation is overwhelming to punish hated groups in times of emergency, Paradis adds in conclusion.  Recall that bills of attainder were bills to authorize the extrajudicial killing of enemies of state.  Ultimately, a death sentence must turn on truth, which must be determined judicially and not legislatively. A final colloquy with Judge Pohl, who asks about the protections built into the 2009 law.  Won’t these aid the pursuit of truth? No, says Paradis.  The truth is not abstract, and that is why we have trials.  The adversarial clash is what allows us to get to truth, the lawyer says.  Yes, the commissions have been reformed, but they still aim mostly at punishing and not truth-finding.  Paradis then refers to the legislative history, where members of Congress expressed reservations about their constituents being brought before commissions.  They were not supposed to go there, Paradis says, because the point was to punish Al Qaeda. Again, Pohl is confused, and asks: If we tried this case in a civilian court, would you expect members of Congress to take your client’s side, and express support for him? Paradis doubts that, and the judge is again at a loss: Didn’t the lawyer just suggest that the views of Congress were relevant? Paradis pauses, and then confesses to being an agnostic about what Congress would think in a hypothetical trial of his client.  That’s beside the point anyway, he says: the MCA's goal was to ensure that individuals like the accused would be sent somewhere different than the federal courts, and with fewer checks. No checks? Judge Pohl shakes his head and cites basic commission procedure. If there is a trial and a penalty, there is review in the CMCR, then in the D.C. Circuit, then in the Supreme Court. That’s three lawyers of review, Judge Pohl says, that Al-Nashiri will have if his arguments do not convince the court today. Fine, says Paradis, but he’s interested more in facts than legal review. Trials are about facts, but the reviewing courts Judge Pohl mentioned have only limited authority over factual matters resolved at trial. The appeals judges did not see what transpired, and they owe deference to the trial judges who did. Again he returns to his motion’s leitmotif: When Congress systematically removes rights that go to the core of the truth-seeking function, and then tries to impose death after doing so, then that is the type of legislation that has been condemned as a bill of attainder. Paradis sits down and Mattivi replaces him at the podium. Mattivi begins by insisting that Paradis has misstated the definition of a bill of attainder. He argues that a bill of attainder is an act of a legislature that declares a person or group guilty of some crime, and punishes that person or group without the benefit of trial.  The defense employs a more liberal definition. For them, a bill of attainder is a statute that declares a person or group guilty, and punishes that person or group without a trial that reflects the defense’s preferences.  That’s just wrong, Mattivi argues. He reminds the court that all the parties stand amidst a process.  Al-Nashiri can argue all he wants about the various aspects of that process, but that does not mean the process does not exist.  The law is that if there is a process, then there is no bill of attainder, full stop.  Mattivi says that’s the gist of his argument and that the rest can be found in the briefs.  These will give Judge Pohl all he needs. The prosecutor then turns to the defense’s reference to various statements by legislators.  Those were cherry-picked; in fact, Congress had serious discussions about procedural standards and ensuring fairness.  Of course the defense wants to quarrel about fairness.  But, Mattivi says, the truth is that people are watching that quarrel, and they are seeing a defense team battling mightily.  And they are seeing a court that is independent, as well as transcripts that are released to the public almost immediately.  The defense can pick at different facets of the process, but the process is there. Judge Pohl recognizes Paradis, who has a word more to add.  Paradis understands Mattivi’s argument to be that if the accused receives any process at all, then there can be no bill of attainder violation.  Unfortunately, that’s just not the law.  This is about the deprivation of rights, and group determinations of guilt.  The simple channeling of that determination through a process that is divorced from normal institutional safeguards is the ultimate problem that the defense has asserted.  And that is what triggers the Bill of Attainder Clause. Judge Pohl then brings the proceeding to a close, and says he will issue a ruling shortly.