Military And Civilian Attorneys Challenge The Military Commissions Act In Second Round Of Guantánamo Pretrial Motions For 9/11 Detainees

November 18, 2008 12:00 am

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WASHINGTON – For the second time this month, a group of military defense lawyers and a team of civilian attorneys assembled by the American Civil Liberties Union and National Association of Criminal Defense Lawyers (NACDL) as part of the John Adams Project filed several pretrial motions in Guantánamo challenging the constitutionality of the military commission prosecutions. The defense is protesting the legality of these ad hoc tribunals, which may rely on coerced confessions and expressly preclude prisoners from invoking the Geneva Conventions. The John Adams Project is a partnership between the ACLU and the NACDL that sponsors expert civilian counsel to assist the under-resourced military defense counsel for several Guantánamo detainees.

“It has become painfully clear that the military commissions lack meaningful constitutional protections and yet the Bush administration is ramming these cases through the system in its final days – even as President-elect Obama is making plans to shut down Guantánamo and these sham proceedings,” said Denny LeBoeuf, Director of the John Adams Project. “History shows that federal civilian or military courts are perfectly capable of handling terrorism prosecutions and accommodating sensitive national security concerns, as has been demonstrated time and time again.”

Motions filed yesterday in the case of several 9/11 defendants focused on the grave constitutional flaws underlying the Military Commissions Act (MCA), charging that the tribunals lack the jurisdiction to prosecute detainees for acts that do not constitute war crimes and that the trial procedure established by the Department of Defense is so deficient that it violates basic constitutional and international standards of due process.

“These challenges cut to the heart of the commission’s authority to convict suspects in a system that resembles a trial in name only,” said Michael Price, National Security Coordinator for NACDL.

The filings come just one day after President-elect Obama reiterated his commitment to close Guantánamo Bay.

In a joint trial of five detainees implicated in 9/11, defense lawyers in United States v. Mohammed et al filed seven pretrial motions yesterday, bringing the total up to 73 since charges were referred in May. The motions include:

• Defense Motion to Dismiss for Unlawful Command Influence by the President. The defense requested dismissal of all charges because of evidence that President Bush, as commander-in-chief, has unlawfully influenced the military commissions through prejudicial and inflammatory public comments and by amassing such unmovable public hostility towards the detainees that any objective, disinterested person would harbor a significant doubt that a fair trial in the military commissions can be achieved. The Commission is duty-bound to ensure fair trials that will guarantee that a death sentence will not be imposed due to the passion and prejudice that has been injected into the proceedings by the President of the United States.

• Defense Motion to Dismiss Charge for Lack of Jurisdiction. Settled Supreme Court precedent reiterates that Congress may only use military commissions to prosecute war crimes. The Military Commissions Act unconstitutionally creates jurisdiction to try detainees for conduct not traditionally recognized as a war crime. As a result, the MCA is overbroad and unconstitutional, and the military commissions lack jurisdiction to consider such charges.

• Defense Motion to Dismiss (Ex Post Facto Application of Unlawful Combatant Status). This motion rejects the concept or category of detainees dubbed “alien unlawful combatants,” arguing that there is no basis for this classification under international humanitarian law, and that prior to September 11, 2001, no such category existed in American jurisprudence. The MCA simply invents a new class of prisoner in order to substantially reduce the elements and burden of proof necessary to convict and punish, including by execution, and subvert the presumption of innocence by altering rules of evidence to make it easier for the government to convict. This retrospective application of such changes in the law violates the Ex Post Facto Clause of the Constitution (Art. I, Sec. 9, cl. 3).

• Defense Motion to Dismiss (MCA Exceeds Congress’ War Powers). In Boumediene v. Bush, the Supreme Court rejected the government’s contention that it had “the power to switch the Constitution on or off at will” and that it could treat Guantánamo Bay as a law-free zone. In this motion, the defense makes a related point: Congress cannot establish a Constitution-free zone simply by calling a criminal proceeding a “military commission.”

• Defense Motion to Dismiss (The Commission Is Not a “Regularly Constituted Court”). This motion seeks to dismiss all charges against because the Military Commissions Act and the Rules for Military Commissions fail to provide the minimum standards of due process mandated by the Supreme Court in Hamdan, the International Covenant on Civil and Political Rights, and customary international law. The commissions violate the right to equal protection and the right to due process, denying the accused adequate time and facilities to prepare a defense and permitting the admissibility of coerced confessions, including those possibly obtained by torture or cruel, inhuman or degrading treatment.

The motions were filed on behalf of detainees Mustafa Ahmed al Hawsawi and Ramzi bin al Shibh. Khalid Sheikh Mohammed, Ali Abdul Azziz Ali and Walid bin Attash reserved the right to join at a later time once the filings are translated into Arabic and the detainees have had an opportunity to consult with counsel. The linguists provided by the military have been unable to accomplish the translations, and the ability of defense attorneys to meet with their clients remains extremely restricted.

More information on the John Adams Project is available online at:

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