More Military Commissions, More of the Time?

Wells Bennett
Thursday, July 11, 2013, 2:10 PM
Speaking of military commissions,  when was the last time you looked at the Office of Military Commissions court calendar?

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Speaking of military commissions,  when was the last time you looked at the Office of Military Commissions court calendar?  Dates added after our most recent GTMO session could mean a faster clip at the war crimes tribunal, in the two capital cases there---the 9/11 case and Al-Nashiri. Recent court orders have established, and the calendar now shows, a week of hearings set for August, in the 9/11 case, and week-long sessions in both capital commissions in September, October, and November.  December will see two weeks' worth of hearings in Al-Nashiri, and a week's worth in the 9/11 case.  Looking to 2014, the court lastly proposed a January session in the latter case to boot. Perhaps this portends a change?  Recent pretrial sessions have been spaced out over slightly longer intervals: motions hearings were conducted in both capital cases in June, and before that, in February and January, and still earlier, in October of last year.   Of course much of this had to do with some docket-slowing events---among them, an Unknown Agency's hitting of a "censor button" during a February session in the 9/11 case, an inquiry by a military examinations board into Al-Nashiri's fitness for trial, and, most recently, attorneys' concerns about the confidentiality of secret defense communications.   Still, I don't recall the commissions' long-term agenda being so fast-paced, or being set this far in advance;  if the commission indeed keeps to the planned schedule, then the capital cases could accelerate somewhat. Of course, it remains to be seen whether the commissions actually will adhere to a faster timetable; there aren't docketing orders up yet for any of the sessions, and the parties have until August 19 to propose and justify any schedule modifications.  And whatever the actual calendar may wind up looking like, simply adding more hearings won't necessarily speed the resolution of pending items by the court (though Judge Pohl does sometimes rule from the bench).  Still, by shifting more ripe motions to the Military Judge's desk, and more swiftly, there's at least the suggestion of a somewhat quicker tempo.  This matters most for Al-Nashiri, I reckon, as any trial in the 9/11 case remains well off in the distant future...

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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