Good evening. This week and next, the Military Commission convened to try the charges against Abd al Hadi al-Iraqi will hold its fifth series of pre-trial sessions without panel members present since he was arraigned in June of last year. Abd al Hadi, an Iraqi national from the city of Mosul, was arraigned on charges that he committed serious violations of the law of war by conspiring with and leading others, as a senior member of al Qaeda, in a series of unlawful attacks and related offenses in Afghanistan, Pakistan, and elsewhere from 2001 to 2006. These attacks and other offenses allegedly resulted in the death and injury of U.S. and coalition service members and civilians.
The charges against Abd al Hadi are only allegations. He is presumed innocent unless and until proven guilty beyond a reasonable doubt. Matters under consideration by a military com-mission in this or any other particular case are authoritatively dealt with by the presiding Judge. Any comments addressing systemic issues that are the subject of frequent questions by interested observers should always be understood to defer to specific judicial rulings, if applicable. As I have not had occasion to meet with you since February, I will provide a brief overview of what to expect in the coming two weeks of sessions in the Hadi case before surveying important developments in appellate proceedings and in other ongoing military commission prosecutions and then generally addressing questions I have received about the future of military commissions within United States national security and justice institutions.
The Hadi Commission has issued a docketing order in which it has set forth the matters it intends to consider during these pre-trial sessions. The docketing order is available at Appellate
Exhibit 46. The Commission has indicated its intent to hear argument and receive evidence, as required, on a defense motion to suppress out-of-court statements of the Accused (AE 45), government motions in limine to consider evidence during preliminary matters and to admit evidence for trial on the merits (AE 35 through AE 43), and personal jurisdiction over the Accused (AE 20B).
The Hadi Commission has also indicated its intent to hear argument and receive evidence, as required, on a defense motion to dismiss for lack of subject-matter jurisdiction and to compel a status determination under Article 5 of the Third Geneva Convention. AE 20. Sixty years ago this month, the Senate unanimously provided its advice and consent to ratifying the Geneva Conventions of 1949. Today, status determinations under the Third Geneva Convention are an issue that federal civilian courts and military commissions continue to confront. This past week, the United States District Court for the Eastern District of Virginia rejected claims by Irek Ilgiz Hamidullin, an alleged member of a Taliban-affiliated group of militants operating in Afghanistan, that he should be accorded prisoner-of-war status under Article 4 of the Third Geneva Convention. United States v. Hamidullin, No. 14-cr-140, 2015 WL 4241397 (E.D. Va. July 13, 2015). In the coming weeks, this Commission will consider claims by Abd al Hadi that, under Article 5 of the Third Geneva Convention, the government must hold a hearing in which a three-officer panel would determine whether he is entitled to prisoner-of-war status.
Between the in-court sessions in which the Hadi Commission has resolved various legal and evidentiary matters before trial, significant work has remained under way. Since arraignment, the parties have briefed in writing 29 substantive motions, 12 of which the Commission has ruled on. More than 41,082 pages of material comprising the government’s case against the Accused, as well as material required to be disclosed to the defense under the government’s affirmative discovery obligations, have been provided to the defense. Substantial additional material has been submitted to the Military Judge under classified information procedures to ensure that while the Accused and counsel have a full opportunity to prepare a defense and to receive any and all exculpatory or mitigating evidence, sensitive sources and methods and other classified national security information are protected. 10 U.S.C. § 949p-4; M.C.R.E. 505(f). These examples of the cumulative work accomplished in this case to date, while never offered to suggest that justice can be measured by numerical formula, serve as important indices of the less visible and methodical progress toward trial that occurs. All recent filings and judicial decisions are available on the military commissions’ website at www.mc.mil.
Although I will not comment on the specifics of any motions pending before a military commission, I will now turn to recent developments in Al Bahlul v. United States, United States v. Mohammad, et al., and United States v. Al Nashiri.
Developments in Al Bahlul v. United States
On 12 June 2015, in a two-to-one decision, a panel of the United States Court of Appeals for the District of Columbia Circuit vacated Ali Hamza Ahmad Suliman Al Bahlul’s conviction for conspiracy to commit war crimes. The panel held that Bahlul’s conviction for “inchoate conspiracy” by a law-of-war military commission “violated the separation of powers enshrined in Article III § 1.” Al Bahlul v. United States, No. 11-1324, 2015 WL 3687457, at *21 (D.C. Cir. June 12, 2015) (“Bahlul II”). The government is considering whether to seek further review of the panel’s decision. Regardless of the government’s decision, military commissions will continue moving toward trial in its seven ongoing cases, six of them capital, for charges alleging serious, completed overt acts of the accused that the government maintains constitute longstanding violations of the law of war triable by military commission.
Nearly a century ago, Colonel William Winthrop, whom our Supreme Court in its decisions has referred to approvingly as “the Blackstone of military law,” provided authoritative guidance that continues to assist military commission prosecutors today. Winthrop wrote that military commissions should try offenses “consisting in overt acts, i.e., in unlawful commissions or attempts to commit, and not in intentions merely.” William W. Winthrop, Military Law and Precedents 831 (rev. 2d ed.1920). While military commissions, not prosecutors, ultimately determine whether an individual defendant is guilty of such offenses beyond a reasonable doubt, and while it is the responsibility of our Nation’s courts, not prosecutors, to say with finality “what the law is,” I want to reassure all who are interested in how appellate decisions might affect pending charges that we have taken great care to conform to Winthrop’s guidance and to all applicable rules of law in prosecuting cases under the Military Commissions Act.
As I discuss further below, recent developments in the pending cases involving six other Guantanamo detainees besides Abd al Hadi reveal important, incremental progress, much of which tends not to capture public attention despite being duly recorded in filings made by the parties with the trial judiciary clerk and then posted on the website. As difficult as it may be to discern amidst the many happenings that command wider interest, we are moving toward trial in these hugely important cases. Meanwhile, as required by repeated Acts of Congress signed into law by the President, those held in Guantanamo remain in secure, humane detention under the law of armed conflict, with a professional and accountable force of service-members doing the detaining and with the legal and factual basis of detention subject to review in our federal courts.
Developments in United States v. Mohammad, et al.
In Mohammad, the Commission issued a Third Amended Protective Order #1 To Protect Against Disclosure of National Security Information. AE 13BBBB. In doing so, the Commission, among other rulings, granted the government’s motion to amend Protective Order #1 (AE 13RRR) to reflect that certain formerly classified information requiring restrictive handling by that order no longer requires such handling. AE 13AAAA at 18; AE 13BBBB at 4-5. Last December the Senate Select Committee on Intelligence made public the Executive Summary of its Study on the Rendition, Detention, and Interrogation (“RDI”) Program. Upon release, the unredacted portions of the Executive Summary that had been classified were declassified. The amendments to the Protective Order reflect these declassification decisions by removing restrictive-handling requirements for certain formerly classified information.
In particular, the amendments by the Commission remove two paragraphs from the Protective Order: (1) the paragraph regarding enhanced interrogation techniques that were applied to the Accused from on or around the specified capture date through 6 September 2006, including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques and (2) the paragraph regarding descriptions of the Accused’s confinement conditions from on or around the specified capture date through 6 September 2006.
The remaining protections in the Order continue to apply and are binding.
The Commission also ordered all defense-team members who will have access to classified discovery provided by the government to sign the “Memorandum of Understanding Regarding the Receipt of Classified Information” by 7 August 2015. AE 13AAAA at 18. This memorandum, routinely required of counsel who receive classified information in discovery in federal civilian courts, obligates defense-team members to protect genuine sources and methods while handling classified information provided to them in discovery.
Also in Mohammad, the Commission denied Khalid Shaikh Mohammad’s request that the Commission reconsider its decision to deny defense motions to abate the proceedings. AE 155KK. In 2013, the defense filed three motions to abate the proceedings alleging “infringements of Defense’s privileged work-product and communications stored on or transmitted over government-provided information systems.” Id. (citing AE 155A, AE 155J, and AE 155M). In October 2013, the Commission denied those motions (AE 155II), finding that “[n]o evidence supports the Accuseds’ concern the purported loss of data or problems with communication were the result of any attempt by the Prosecution or DoD to compromise Defense files or encumber Defense efforts to represent their respective clients.” AE 155II. The government takes very seriously both the effective representation of counsel and the attorneyclient privilege that is central to such representation. Last month, the Commission denied Mr. Mohammad’s motion to reconsider its ruling, reasoning that Mr. Mohammad failed to raise “any new matters.” AE 155KK.
In a separate ruling, the Commission also denied Mustafa Ahmed Adam Al Hawsawi’s motion alleging that his current conditions of confinement do not comply with international humanitarian law standards. AE 303D. The Commission concluded, among other findings, that Mr. al Hawsawi failed to present “any case law or other authority to this Commission that concludes any policy, procedure, or practice that differed from any practice at The Hague is ‘inhuman’ or having significant impact to a right or privilege of the Accused before this Commission and thus requiring the relief the Defense requested.” Id. at 5. The Commission also rejected Mr. al Hawsawi’s claim that the detainees’ “quality of life effects” are “adversely affecting ‘the quality of engagement’ of representation.” Id. at 6.
The next pre-trial sessions in Mohammad are scheduled to occur over a two-week period from 24 August 2015 through 4 September 2015. AE 325D.
Developments in United States v. Al Nashiri
On 27 March 2015, the government filed its second interlocutory appeal in Al Nashiri.
The government appealed to the United States Court of Military Commission Review (“U.S.C.M.C.R.”), our first reviewing court, from the Commission’s order excluding substantial government evidence material to its burden of proof on an element of the terrorism charge. AE 248T. The government had previously appealed to the U.S.C.M.C.R. from the Commission’s dismissal of the charges related to the attack on the MV Limburg. AE 168L/AE 248H. In April, the Commission granted the defense motion to abate all future commission sessions pending resolution of the two interlocutory appeals. AE 340J.
While the first interlocutory appeal was pending before the U.S.C.M.C.R., Mr. Al Nashiri petitioned the D.C. Circuit for a writ of mandamus and prohibition to the U.S.C.M.C.R. alleging that military judges are assigned to that court in violation of the Appointments Clause and cannot be freely removed in violation of the Commander-in-Chief Clause of the U.S. Constitution. The D.C. Circuit stayed the appeal so that it could consider the writ petition. Briefing in the second interlocutory appeal was also stayed pending the D.C. Circuit’s consideration of the writ petition.
On 23 June 2015, the D.C. Circuit denied the writ petition and dissolved the stay. The court concluded that issuing the writ would be inappropriate because Mr. Al Nashiri “can adequately raise his constitutional challenges on appeal from final judgment.” In re Al-Nashiri, No. 14-1203, 2015 WL 3851966, at *1, *13 (D.C. Cir. June 23, 2015). Although the D.C. Circuit did not resolve questions raised by the Appointments Clause challenge, it did note that “the President and Senate could decide to put to rest any Appointments Clause questions regarding the CMCR’s military judges . . . by re-nominating and re-confirming the military judges to be CMCR judges.” Id. at *13. While not conceding these steps are constitutionally required, the government moved the U.S.C.M.C.R. to stay the proceedings as it explores options for re-nomination and re-confirmation of the military judges as U.S.C.M.C.R. judges. On 26 June 2015, the U.S.C.M.C.R. granted the motion. The government is working diligently to explore these options and will update the court on its progress every thirty days.
Meanwhile, the prosecution has achieved major milestones in its compliance with the Commission’s 24 June 2014 Order in Al Nashiri. See AE 120AA. Working seven days a week, the prosecution has substantially responded to the June Order with respect to all ten categories of information identified in the Order, and it continues to seek access to other, potentially discoverable information. AE 120JJJJ. The Commission has already approved requests for six of the ten categories, while other requests remain pending with the Commission.
As with the June Order, the prosecution has been working diligently to comply with the Commission’s 17 December 2014 Trial Conduct Order. AE 330. The prosecution reviewed the pre-existing protective order governing RDI information and moved the Commission to amend the protective order to reflect recent declassification decisions. AE 13R. In February, the Commission granted the prosecution’s motion and removed restrictive-handling requirements for certain formerly classified information. AE 13S. The prosecution also completed a classification review of all motions where the Commission has taken final action and provided the Commission and the defense with all filings reflecting updated classification markings. AE 330B. The prosecution will do the same for motions where the Commission has not taken final action by 7 September 2015 or, where appropriate, after the Commission takes final action. (The prosecution has made similar strides in compliance with the Commission’s Trial Conduct Order in Mohammad. For details, see Mohammad, AE 331B.)
Also, on 18 February 2015, the Senate Select Committee on Intelligence authorized the Office of the Chief Prosecutor of Military Commissions to review the full “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program.” AE 206Q. On 28 April 2015, the Commission denied Mr. Al Nashiri’s motion to compel the production of the full Study to the defense, instead permitting the prosecution to continue its work begun in February 2015 to review the Study for potentially discoverable information to provide the defense. AE 206U.
Questions Received About the Future of Military Commissions
Since the June 12th decision by the D.C. Circuit panel in Bahlul II, which I mentioned earlier, I have received questions from some of you about the future of military commissions.
While it is always appropriate to take stock of our institutions to ensure that they are acountable to the law and to the people and that they serve our national security interests and the interests of justice, the latest round of commentary by some that Bahlul II spells doom for military com-missions is, in my view, both overstated and myopic. In short, military commissions—along with our federal courts and other instruments of national authority—are carrying an important and lawful burden within the larger effort to maintain peace and security. We should expect that they will continue to carry that burden, while upholding our cherished values, for the foreseeable future.
National policy regarding detention operations is contained in Executive Order 13,492 of January 2009 and in other applicable directives and laws. This framework of policy and law is sound, and it fully complies with the international law of armed conflict, including the Geneva
Convention requirement that detainees be treated humanely and that they be tried for pre-capture offenses only by regularly constituted courts “affording all of the judicial guarantees recognized as indispensable by civilized peoples.” The framework recognizes that a nation such as the United States must have secure, humane, and legitimate options for detention of transnational terrorists who threaten our people because our service-members in armed conflict are required by the law and by our values to give quarter to those they capture alive. And yet, while we will not release untried law of war detainees who present a clear and continuing danger to the American people and to peace-loving peoples around the globe, we must resort to extended detention only after exhausting all lawful alternatives and only with oversight and safeguards in place to prevent such extended detention from creating a new normal.
Congress, acting eight times with guidance from the courts across two administrations, has deemed military commissions to be the forum best suited to try a narrow but critically important category of cases. By law, military commissions are the only available forum for U.S. criminal trials of Guantanamo detainees. And for certain cases, they are also the most appropriate. As the National Security Strategy for 2015 affirmed, “[w]here prosecution is an option, we will bring terrorists to justice through both civilian and, when appropriate, reformed military commission proceedings that incorporate fundamental due process and other protections essential to the effective administration of justice.”
Advocates for using only civilian prosecutions offer diverse rationales, but in defending a deservedly proud tradition of law enforcement and nonmilitary criminal justice, they fail to make the more difficult case that military commission war crimes trials are unneeded. In our nation’s recent experience, federal civilian agents and prosecutors can and do disrupt and punish a wide variety of terrorist and other organized threats—including through the charging of precursor crimes such as identity fraud or immigration violations—and the legitimacy of a federal court conviction is unquestioned. But federal civilian courts’ exclusion of reliable and lawfully collected hearsay statements is problematic when witnesses inhabit the same ungoverned regions where war crimes were hatched and are thus unavailable for trial. Also, the requirement that statements by an accused be preceded by warnings of the rights to remain silent and to have an attorney also makes little sense in a situation of genuine overseas hostilities.
And of the nineteen federal court prosecutions since 9/11 of al Qaeda members who were captured overseas and were also triable for war crimes—a more pertinent data point than the hundreds of purely domestic prosecutions often cited by private advocacy groups that are openly committed to military commissions’ extinction—all but one came into our custody through law enforcement cooperation with foreign governments who lacked lawful mechanisms for further incapacitating the individuals. This is hardly a convincing record for banning military commission trials that feature sensible and fair evidentiary rules suited to punishing members of irregular hostile groups, who plan attacks from difficult-to-reach sanctuaries in increasing numbers.
For those who are interested in the details, the nineteen cases are as follows: 1. Jabarah (S.D.N.Y. 2002); 2. Nalfi (S.D.N.Y. 2003); 3. Afridi (S.D. Ca. 2004); 4. Zayed (E.D.N.Y. 2005); 5. Moayed (E.D.N.Y. 2005); 6. Syed (S.D. Ca. 2006); 7. Kassir (S.D.N.Y. 2009); 8. Delaema (D.D.C. 2009); 9. Siddiqui (S.D.N.Y. 2010); 10. Ghailani (S.D.N.Y. 2010); 11. Warsame (S.D.N.Y. 2011); 12. Issa (S.D.N.Y. 2011); 13. Ghaith (S.D.N.Y. 2014); 14. Hamza (S.D.N.Y. 2014); 15. Babar (D. Conn. 2014); 16. Bary (S.D.N.Y. 2014); 17. Fawwaz (S.D.N.Y. 2014); 18. Naseer (E.D.N.Y. 2015); 19. Hamidullin (E.D. Va.) (ongoing).
The U.S. gained custody of five of these persons from the U.K. (14-18), two from Hong Kong (3, 6), two from Germany (5, 6), one from Canada (1), one from the Netherlands (8), one from the Czech Republic (7), one from Ghana (12), one from Kenya (2), one from Jordan (13). Only four came from portions of South West Asia containing large regions of ungoverned space (Afghanistan-9 & 19; Pakistan-10; and international waters near the Arabian Peninsula-11), and these four required close coordination with U.S. military forces and non-standard law enforcement detention. A comparison of these prosecutions with the fifteen thus far tried or arraigned by military commission is instructive, though beyond the scope of these remarks. The fifteen military commissions prosecutions are as follows: 1. Hicks (2007); 2. Hamdan (2008); 3. Bahlul (2008); 4. Qosi (2010); 5. Khadr (2010); 6. Noor (2011); 7. Khan (2012); 8. Darbi (2014); 9. Nashiri (ongoing); 10. KSM (ongoing); 11. Khallad (ongoing); 12. Ramzi (ongoing); 13. Hawsawi (ongoing); 14. Ammar (ongoing); 15. Hadi (ongoing). I reiterate that the Accused in ongoing cases are presumed innocent unless and until proven guilty beyond a reasonable doubt.
It is by no means a decisive rejoinder to point to early military commission convictions that have since been overturned on appeal. This is because the sound legal framework for detention and trial now in place has successfully incapacitated many demonstrably dangerous members of al Qaeda and associated forces, and legitimate incapacitation of terrorist threats is a separate good from the legitimate adjudication of such threats as criminals. Those incapacitated have included not only detainees who have been tried by military commission—with some of these now released and cleared of their war crimes convictions through subsequent court review—but also a larger number who cannot be criminally tried and yet for whom continued detention under the law of war is proper and justified.
The example of David Hicks illustrates the distinction between legitimate incapacitation and criminal adjudication. David Hicks pled guilty to providing material support to terrorism in violation of the Military Commissions Act of 2006 (“2006 M.C.A.”). He did so upon voluntarily admitting, with advice of counsel, that he had trained at Al Qaeda’s Farouq camp and Tarnak Farm complex in Afghanistan, met with Usama Bin Laden, joined Al Qaeda and Taliban forces preparing to fight United States and Northern Alliance forces near Kandahar in September 2001, and joined the ongoing fighting against Coalition forces in Konduz the following month before fleeing the battlefield. Opinion, Hicks v. United States, No. 13-004 (U.S.C.M.C.R. Feb. 18, 2015). These admissions clearly established every day of his five-plus years of detention by the United States as an unprivileged belligerent to have been lawful within the 2001 Authorization for the Use of Military Force. Mr. Hicks acknowledged—again on advice of zealous and competent defense counsel and before an independent judge who had the duty to reject a plea not believed to be knowing, voluntary and intelligent—that “he has never been the victim of any illegal treatment at the hands of any personnel while in the custody or control of the United States.” Id. Mr. Hicks was repatriated to Australia in May 2007. There is no indication that upon subsequent release from detention by Australian officials he has ever since returned to hostilities with al Qaeda.
In February, Mr. Hicks successfully appealed his conviction before the United States Court of Military Commission Review on grounds that its reviewing court—the en banc United States Court of Appeals for the District of Columbia Circuit—had ruled last year in Al Bahlul v. United States that providing material support for terrorism was not triable by military commission for conduct that occurred before Congress enacted the 2006 M.C.A. The government did not elect to appeal the Hicks decision. While Mr. Hicks’s public statement indicate no inclination to again travel overseas to wage jihad with a terrorist group, laws in Australia and the United States now expressly criminalize extraterritorial provision of material support to such groups.
Although the U.S.C.M.C.R.’s February ruling in Hicks was the last occasion causing some commentators to dramatically predict the demise of military commissions, the ruling instead affirmed that commissions are a resilient part of our justice and counterterror efforts. They are capable of isolating charges pursued in 2007 (Hicks) and 2008 (Al Bahlul) as not sustainable on appeal and of correcting defects in the earlier post-2001 legal framework. These cases, and the daily work of military commission prosecutors to try every detainee who can be tried under the law, make that framework strong and legitimate, in turn legitimating the extended law of war detention that in hard cases must be resorted to, subject now to habeas corpus review by our federal courts. Meanwhile, those hard cases themselves number in the several dozens, and the humane but secure incapacitation of these detainees has helped safeguard national security and continues to do so.
Thus, as I have said before in restating sound strategy and policy, we must use all lawful instruments of national power and authority to protect against modern threats. Military commissions have a narrow but important role in pursuit of that worthy goal.
* * * * *
In closing, let us pause to honor the four U.S. Marines and one U.S. Sailor killed as a result of the attacks in Chattanooga, Tennessee on Thursday and to express our deepest condolences to their families and our solidarity with their fellow service-members. We also wish a full and speedy recovery to the police officer and Marine Corps recruiter who were injured in the shootings that day. To those who have served and will serve in the years to come, and to all the Marines, Soldiers, Sailors, Airmen, Coast Guardsmen, and other public servants who support these proceedings, I want to publicly thank you for your many contributions and sacrifices—all of which are humbly appreciated.
