Yesterday at the Military Commissions: Al-Hadi

Editor's Note: This post represents a modest adjustment in Lawfare's military commissions coverage, one made necessary in part because of the surge in criminal hearings at Guantanamo in the coming weeks and months. Previously, when Lawfare writers have been unable to live-blog Guantanamo proceedings by visiting a CCTV observation facility at Fort Meade, they have turned as a "backup" measure to the transcripts---thereafter producing a digest based on those. Much like the live-blogs, the format of such dispatches typically has been present-tense and rather detailed; the pieces also have been posted exclusively on our "Events Coverage" page. Now and going forward things will be slightly different: As an experiment, we will offer on Lawfare's main page a more focused briefing, one touching on key takeaways only from the prior day's litigation at GTMO. Of course, this formatting tweak will not affect our live-blogging, when it happens; our strong preference will be to attend CCTV sessions whenever possible, and post those real-time pieces in our "Events Coverage" section, per usual.   A week-long hearing in United States v. Abd al Hadi al-Iraqi started off yesterday with the question of whether the judge in the case, Navy Captain J. Kirk Waits, can remain impartial after female guards at Guantanamo filed a complaint in response to his temporary order restricting them from having physical contact with the accused. Although no party has filed a motion asking the judge to recuse himself, Judge Waits preemptively rejected any contention that his impartiality is "subject to reasonable question" under Military Commission Rule 902(a), explaining that he has not seen the complaint, no administrative procedure exists for resolving such a complaint, the order only relates to movements to and from court, and judges, almost by definition, must make decisions that harm someone's interests. The morning session's main order of business focused on two defense motions: AE 026, a motion to dismiss for lack of personal jurisdiction, and AE 027, a motion to dismiss co-conspirator liability. On AE 027, the defense's argument, presented by Air Force Maj. Ben Stirk, hinged on the fact that the common charges for the alleged co-conspirators, which are essentially a theory of liability, will be on the charge sheet before the jury throughout the trial. Further, the government's definition of co-conspirator liability follows the much broader American approach, rather than the narrower approach of the international law of war. Rather than place this in front of the members of the jury, the defense explained that these issues should be argued during the trial and provided in jury instructions. AUSA Mikeal Clayton presented the government position: Prosecutors generally use charge sheets to lay out the means by which the defendant allegedly committed the crime, and the judge may instruct the jurors throughout the trial that the charges are merely allegations that the prosecution must prove. Nor is it clear, he added, that the American view of co-conspirator liability is inappropriate in the military commission context. Judge Waits expressed deep skepticism with the defense's argument, pointing out that this motion was not really about "what the members are going to read when they sit down here"—which was addressed in another pleading before him—but really about "the viability of co-conspirator liability in this commission." He also found it "pretty persuasive" when the government argued that the language of the Military Commissions Act for co-conspirator liability tracks the language of the Uniform Code of Military Justice and so should have similar meaning. The defense's next motion, AE 026, asked the commission to dismiss the case for lack of personal jurisdiction on the grounds that the Military Commissions Act violates the Due Process Clause of the Constitution via its equal protection component. According to the defense, this is so because:

[T]he 2009 Military Commissions Act conditions the personal jurisdiction of a military commission on the nationality of the accused. It literally creates a segregated criminal justice system for noncitizens. Now this commission is being asked to embrace this segregation of the justice system for what we believe is the first time in U.S. history.

The question is whether this classification should receive strict scrutiny, under which it would almost certainly fail, or rational basis, under which it would almost certainly succeed. The defense argued for strict scrutiny as this does not fall under Congress's power to regulate immigration; the prosecution explained that no court has ever applied strict scrutiny to such a case, and many Supreme Court cases have distinguished between the rights of citizens and noncitizens in the context of enemy belligerents. Judge Waits seemed to lean in favor of the government's argument, given the discussion of the due process clause in the Court of Military Commission Review's Hamdan opinion—which, he notes, was not overturned in the case's subsequent history. Finally, the commission quickly heard the defense's objections to the use of remote testimony in argument on the motion on whether female guards are allowed to touch the accused. Judge Waits overruled the defense's objection because, as an issue collateral to trial, the rules of evidence do not apply and the accused does not have a right to confrontation. It seems the previous officer in charge at Guantanamo for the female guard force will testify by video conferencing after all. The commission entered a closed session in the afternoon; open session was not held on Tuesday.