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Guantanamo detainee lawyers challenge constitutionality of military commissions

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] Military lawyers for Guantanamo Bay detainee and alleged 9/11 co-conspirator Ramzi bin al-Shibh on Wednesday asked the US Court of Appeals for the District of Columbia Circuit to declare the Military Commissions Act of 2006 (MCA) unconstitutional. Commander Suzanne Lachelier and Lt. Commander Richard Federico of the US Navy Judge Advocate General's Corps argued that the MCA exceeds Congress' constitutional authority and that the military commissions formed under the MCA are not "regularly constituted" courts within the meaning of Common Article 3 of the Geneva Convention: These cases were never intended to do justice. Instead, what the government has sought, and to date received, is not a legitimate judicial proceeding but a political show trial. The process has been corrupted by illegitimate political considerations at every step. Political distortions of the judicial process begin with the MCA itself. The provision limiting its jurisdiction to aliens ... was designed to avoid the political consequences of imposing the MCA's facially unconstitutional procedures like this on American citizens. ... No other American criminal court system is so obviously founded on such politicized and illegitimate premises.The petition also contends that the government's conduct in the trials has violated the Equal Protection principle regardless of the MCA's facial validity. Lachelier and Federico contend that interference from the Central Intelligence Agency (CIA) "has been an integral part of this system, with devastating effects on the fairness of the proceedings" and that recent investigations by the Federal Bureau of Investigation (FBI) has "destroyed attorney-client relationships and the ability of some counsel to perform their defense responsibilities."Last month, military Judge Stephen Henley ruled that al-Shibh's lawyers would not be allowed to tour secret CIA prisons, known as "black sites" in advance of a September 22 competency hearing. Henley also denied a defense request to be made aware of what interrogation techniques were used on al-Shibh by the CIA prior to his transfer to Guantanamo Bay. His lawyers had argued that interrogation details were relevant to determining whether he suffers from post-traumatic stress disorder (PTSD) or a permanent psychological disability, which would in turn affect his competency to stand trial. In July, Retired Judge Advocate General Rear Admiral John Hutson urged the Senate Armed Services Committee to repeal rather than reform the MCA. Hutson said that although he was an "early and ardent supporter of military commissions," the process created to try enemy combatants "did not live up to the traditions" of the Uniform Code of Military Justice (UCMJ) and had become a "significant distraction for the military."

Full post as published by JURIST - The Paper Chase on September 11, 2009 (boomark / email).