Federal Court Evidence in the 9/11 Defendants' Military Commission?

Something to mull, while Judge Pohl ponders severance in the 9/11 case: whether the government’s evidence in the still-far-off-in-the-future military commission trial (or trials) also could be admitted in a federal courtroom.  In the commissions, some evidence can theoretically be admitted that could not be in a federal court.  The parties have, for example, a freer hand to use hearsay evidence in commission proceedings.  In this and other respects, the commissions make it easier to convict an accused, despite important safeguards added by Congress in 2009.  Of course, distinctions between the two systems’ evidentiary rules could be rendered hypothetical if, in a commission case, the government believes it can convict the defendant with evidence admissible in an everyday criminal trial.  United States v. Mohammed et al is such a case, seeing as how prosecutors charged it in federal court already, in 2011.    Readers likely are familiar with the 9/11 case's migration over the years: in 2008, military commission charges were referred at Guantanamo, but the prosecution was halted by the Obama Adminstration about a year and a half later.  Then the case was supposed to go forward in a New York federal court - but Congress eventually stopped it, by banning the use of funds to transfer Guantanamo detainees to the United States.  (By this time a federal grand jury had returned a ten count indictment against the 9/11 co-conspirators.)  Military charges thus have been brought again, in a reformed military commission.  The defendants were arraigned there earlier this month.  The prosecution team might decide, as a matter of discretion, to introduce only evidence that also could have been admitted during the federal district court trial the administration preferred.  After all, the government clearly concluded it had enough admissible evidence to bring a federal prosecution in the 9/11 case – and, presumably, to convict all five men beyond a reasonable doubt.  And while there are differences between the scuttled civilian indictment and the pending military charges (the substantive offenses vary in number and required elements), these differences do not seem to preclude the voluntary resort to federal evidence rules.  The central allegations in the federal and military systems have been nearly identical.  In both, prosecutors charged that the five foreign terrorists planned and supervised the execution of an international conspiracy, in which airplanes were hijacked and flown into buildings, thus causing nearly 3,000 deaths, bodily injury, and extensive property damage. The case’s resumption at Guantanamo, and its return to a more permissive regime, need not meaningfully alter the proof for those claims.         And there are good reasons for prosecutors to consider presenting the same case in a military commission that they would have presented in federal court.  Opting to rely entirely on federally-admissible evidence would neither change current policy nor cast doubt on the reformed commissions.  Nothing requires prosecutors to invoke the commissions’ more flexible procedures in every case, or precludes them from resorting to higher standards when circumstances warrant.  Discretionary use of federally admissible evidence also could help ensure that the 9/11 trial resembles a civilian trial to the greatest extent possible. That, in turn, might blunt (if only partially) a critique that is sure to follow judgment in the 9/11 case: that federal rules, had they been applied, would have yielded a more respectable outcome. So will the prosecution sign on to this approach?  It obviously must stay mum about the specific evidence it plans to introduce in a particular case.  But it can generally describe its approach to the commissions’ rules.  These do not seem to stop the government from presenting federally admissible evidence, when, at long last, the 9/11 case comes to trial.