CAAF and commissions

Senate Bill 1390 (available here), the Senate's version of the National Defense Authorization Act for Fiscal Year 2010, includes revisions of the Military Commissions Act to make the military commissions system more closely resemble the court-martial system. See id. at § 1031. The bill would amend the Military Commissions Act of 2006 to establish CAAF as the primary appellate review authority for the military commissions system. The bill kills off the Court of Military Commission Review, which currently consists of a mix of CCA and civilian judges, and removes the commission system from the D.C. Circuit's jurisdiction. Instead, the bill gives CAAF jurisdiction to review every commission conviction for legal error, factual sufficiency, and sentence appropriateness. The Supreme Court could then review CAAF's decision by writ of certiorari. Under the bill, 10 U.S.C. § 950c would provide that unless the accused waives appellate review, "in each case in which the final decision of a military commission under this chapter (as approved by the convening authority) includes a finding of guilty, the convening authority shall refer the case to the United States Court of Appeals for the Armed Forces."

10 U.S.C. § 950f would provide:

(a) Review by United States Court of Appeals for the Armed Forces- (1) Subject to the provisions of this subsection, the United States Court of Appeals for the Armed Forces shall have exclusive jurisdiction to determine the final validity of any judgment rendered by a military commission under this chapter.

(2) In any case referred to it pursuant to section 950c(a) of this title, the United States Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

(3) If the United States Court of Appeals for the Armed Forces sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

(b) Review by Supreme Court- The Supreme Court of the United States may review by writ of certiorari pursuant to section 1257 of title 28 the final judgment of the United States Court of Appeals for the Armed Forces in a determination under subsection (a).

As the Gitmo Defense Shop Turns - Kuebler Reinstated

Or we could call it, "The Young and the Soon to be Jobless." What ever you call it, as reported by the Toronto Star here, LCDR Bill Kuebler was reinstated late yesterday as counsel in the Omar Khadr commission case. According to the report, Army Col. Patrick Parrish ruled that only the military judge in a commissions case may authorize removal of counsel, without reaching the merits of Chief Gitmo Defense Counsel (Air Force) Col. Peter Maciola's decision. For even more on this soap opera see the Ottawa Citizen report here and Canadian National Post Story here.

Masciola is quoted as saying he will appeal the decision, though my brief review of Commission rules says that Col. Parrish is right and only if an express conflict with the counsel's state bar licensing rules exist can the Commission CDC remove a defense counsel. See Rule 109(b)(3)(C). Otherwise, it appears Rules 109(b)(2) and 502(f) give the power to remove counsel from a case to the military judge. But that was based on a word search review so don't count that as authoritative.

Involuntary Reassignment of Defense Counsel

This post is not about an abstract topic, but rather a link to an actual story of a Navy LCDR that was involuntarily reassigned from his job as a defense counsel in a military commission case. See NY Times article here. While we don't usually cover commissions, the involuntary termination of a defense counsel that had formed an attorney client relationship, without consulting the client, raises enough MilJus issues that the action merits coverage. According to the NYT,

[LCDR] William C. Kuebler, who was appointed by the Pentagon to represent Omar Khadr, was reassigned on Friday after an internal inquiry into his conduct, said Michael Berrigan, the deputy chief defense counsel at the Navy base in Guantanamo.

According to other reports,

[Commissions' Chief Defense Counsel Col. Peter Masciola,] ordered Kuebler's removal Friday in order to pursue "client-centred representation," according to a statement from his office. . . . "The team representing Omar Khadr had become dysfunctional," Masciola said. He said he could not elaborate because of privacy concerns and attorney-client privilege. A source who asked not to be named said yesterday Masciola had concluded that Kuebler was "a divisive figure on the military team and failed to act in best interests of Khadr."

See Edmonton Sun report here. According to the story, "Kuebler insisted his reassignment was sparked by his criticism that [Col.] Masciola was too cosy with prosecutors." If anyone has any more information on the events or the rationale for the firing, please let us know in comments or via email.

BTW: (1) h/t to Anon for the story; and (2) for those military DCs out there that previously felt squeamish about going to the press about your case (though some deny there are any of you, see our discussion here), what say you about this move? Is this the exception that proves the rule that you can go to the press about your case or the case study that makes TDC reluctant to go to the press?

Army Judge Pohl Sticks it to Obama Adminstration [Updated]

Here is a link to breaking news from the WaPo that Army Colonel James Pohl has denied the Obama Administration's request to delay the military commission hearing in the case of Abd al-Rahim al-Nashiri, a Saudi citizen of Yemeni descent. Al-Nashiri is accused of, according to the Post, "planning the October 2000 attack on the USS Cole warship, an al-Qaeda strike that killed 17 service members and injured 50 others."

The article says Judge Pohl found the government's arguments for postponing the arraignment "unpersuasive." Leaving aside how an offense committed in 2000 can be tried in front of a military wartime tribunal, and all the other issues that will set off a $*%# storm in our Comments section, this was a brave move by Judge Pohl, so it warrants mention here.

Update: Apparently the defense did not object to the continuance, though Nashiri's defense counsel, according to the WaPo, here, asked that discovery continue. WaPo added this quote from the military judge on his ruling, "The Commission is unaware of how conducting an arraignment would preclude any option by the administration . . . Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."

The WAPo gave us this quote, that falls into the understatement of the year (it's early) category, "'It's somewhat of a shock," said Navy Cmdr. Stephen C. Reyes, Nashiri's military defense attorney."

Arraignment means jeopardy attaches, so the convening authority may, understandably, now be considering withdrawal and dismissal of charges or other options.

President Obama Orders Prosecutors to Request Continuance in Gitmo Trials

According to multiple wire service reports, the President, through SecDef Robert Gates, has ordered the prosecutors in two military commission cases underway at Guantanamo to request 120-day continuances so that the new administration can "review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

It is not known whether the defendants will agree to such requests, and the military judges may decline to grant them.

UPDATE: Per NPR, the prosecution motion has been granted, apparently as to the trials underway and all pending trials.