Military Commissions

Senate should oppose D.C. Circuit Court of Appeals nominee Caitlin Halligan


In 2009, current D.C. Circuit Court of Appeals nominee Caitlin Halligan donated her legal services pro bono and co-authored amicus brief which argued that the 2001 AUMF did not authorize indefinite military detention of captured unlawful enemy combatants.

The Honorable Senator Mitch McConnell
United States Senate
Washington, D.C.
March 4, 2013

Dear Senator McConnell,

We are writing today to express our strong opposition to the appointment of Caitlin J. Halligan to the D.C. Circuit Court of Appeals. We do so because we have seen, first hand, how judicial activism can thwart efforts by the executive and legislative branches of government to protect this nation in matters of national security. We have observed judges on the D.C. Circuit inexplicably dismiss compelling evidence in Guantanamo detainee habeas cases and order the detainees released, only to have those same cases overruled at the appellate level. As the threat of terrorism by groups and individuals inside the U.S. homeland continues to rise, it is essential that the American people continue to be protected through laws crafted and enacted by their sworn representatives, not by unelected judges who serve lifetime terms, accountable to no one.

The D.C. Circuit Appellate bench has jurisdiction over military commission appeals. Ms. Halligan has a public record dismissing military commission as inferior courts. Indeed, the New York City Bar Association Committee on Federal Courts, on which she served, published a report which she signed, describing military commissions as outside the “rule of law.” As you well know, the Detainee Treatment Act and the Military Commissions Act were nothing less than the result of a vigorous, hard-won bi-partisan effort to create a fair, reasonable, and effective legal framework within the confines of the Authorization for the Use of Military Force (AUMF) that dealt with an unconventional, asymmetrical existential threat to this nation. Despite the fact that the MCA and indefinite detention was upheld by the United States Supreme Court, Ms. Halligan, working pro bono, submitted an amicus curiae brief in the 2009 case of Ali Saleh Kahlah Al-Marri v. Spagone, arguing that the AUMF did not authorize the seizure and indefinite military detention, without criminal trial, of a resident alien who allegedly conspired with Al-Qaeda to execute terror attacks on the United States.

We regret that the Constitutionally-required process of Advice and Consent has become politicized, and that activist nominees to the bench try to thwart exposure of their legal philosophy through ambiguous or incomplete testimony. But Ms. Halligan has taken this to a whole new level. She has attempted to remake herself entirely. We believe that she has affirmatively misrepresented herself to the Judiciary Committee, thus lowering the bar on candor and honesty even further. If the Senate votes to affirm her nomination, in our view, it will be complicit in this deception. Worse, the American people, who count on our representatives to act on our behalf, will be even more discouraged. We are tired of political expediency in matters that affect our lives, and the lives of our children and grandchildren. When judges take these matters away from the people, where do we then go?

We urge you and your fellow senators not to allow President Obama to wear you down. As you have before, we urge you to vote “no” against cloture in the nomination of Caitlin Halligan.

Respectfully submitted,

Debra Burlingame
Tim Sumner
Co-founders, 9/11 Families for a Safe & Strong America

Related reading:

File – Caitlin Joan Halligan, Nominee, United States Court of Appeals for the District of Columbia Circuit, January 19, 2011 (document file)

THE INDEFINITE DETENTION OF “ENEMY COMBATANTS”: BALANCING DUE PROCESS AND NATIONAL SECURITY IN THE CONTEXT OF THE WAR ON TERROR The Association of the Bar of the City of New York Committee on Federal Courts February 6, 2004 (pdf)

Try KSM and al Nashiri at Gitmo now for their war crimes

President Barack Obama and Attorney General Eric Holder believe the enemy has Constitutional rights. So far, the Supreme Court has not agreed with that assertion. We should put the theories to the test by trying al Nashiri and Khalid Sheikh Mohammed at Gitmo now.

When Holder brought Ghailani to federal court for trial, he did so knowing a federal judge might not allow the seller of the TNT to testify as he was first identified during Ghailani’s detainee interrogations. Instead of railing against bestowing Constitutional rights upon non-U.S. persons who wage illegal war, Benjamin Wittes and Jack Goldsmith seem to argue we should just wait the enemy out in their op-ed today in the Washington Post:

The government had a difficult time convicting Ghailani in large part because presiding Judge Lewis Kaplan excluded a key witness that the government had acknowledged it knew about through coercive interrogations. Many critics of civilian trials claim that this problem would not have occurred in a military commission, but that is very probably wrong. The legal standard for excluding such evidence in military commissions would depend on the military judge’s sense of the “interests of justice.” The government would be foolish to rely on military judges’ willingness to admit evidence obtained – even in a derivative fashion – as a result of coercion. There is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a commission.

Imagine that Ghailani had been acquitted on all counts. The administration would then have faced a terrible choice between releasing him or — as the attorney general and Judge Kaplan have said is possible — continuing to hold him in military detention indefinitely despite his acquittal. The first option would be unsafe for the nation and suicidal politically. The second option would look terrible in light of an acquittal and would harm the legitimacy of every subsequent terrorist trial.

This terrible choice — which came close to becoming a reality — reveals why military detention is fundamental and appropriate here. The reason the first option is unsafe and the second option is available is that Ghailani helped conduct a major terrorist operation on behalf of a group with which the country is at war. Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation.

As civilians, Ghailani, al Nashiri, and KSM all waged illegal war against the United States by attacking our embassies, the USS Cole, and both civilians and military personnel on 9/11. If no evidence exists to support those assertions, then both President Bush and President Obama had no inherent or Congressional authority to continue to hold them as detainees. Yet abundant evidence exists that all three committed war crimes resulting in the deaths of U.S. persons.

The Supreme Court reaffirmed the President’s authority to indefinitely detain the enemy back in 2004 so their detention is not at issue. That war crimes were committed, they require an accounting, and America’s enemies should not be afforded Constitutional rights are the issues.

Attorney General Holder declined to prosecute Ahmed Ghailani for his post-9/11 activities as a member of al Qaeda. It is telling that Holder announced last year that U.S.S. Cole bomber al Nashiri would be brought to a military commission in the United States only to let the DOJ withdraw those charges in August 2010, as the Washington Post reported:

[C]ritics of military commissions say the Nashiri case exemplifies the system’s flaws, particularly the ability to introduce certain evidence such as hearsay statements that probably would not be admitted in federal court. The prosecution is expected to rely heavily on statements made to the FBI by two Yemenis who allegedly implicated Nashiri. Neither witness is expected at trial, but the FBI agents who interviewed them will testify, said Nashiri’s military attorney, Navy Lt. Cmdr. Stephen C. Reyes. “Unlike in federal court, you don’t have the right to confront the witnesses against you,” he said.

Three of the prosecution’s witnesses against Ahmed Ghailani were not available because they died since testifying in the 2001 trial against the four previously arrested for the 1998 attacks upon our embassies. If our national policy becomes delaying war crime prosecutions until the end of hostilities, it imbues war criminals with a temporary immunity and risks their outliving the means to bring them to justice.

Judge Kaplan’s ruling that the testimony by the seller of the TNT to Ghailani was “fruit of a poisoned tree” is exactly why President Obama and Attorney General Holder hold out hope to someday bring more Gitmo detainees onto U.S. soil and to trial, regardless of the venue. Yet after the Ghailani verdicts, this and future Congresses are unlikely to ever fund bringing them here for that purpose.

This war will not end in our lifetimes or theirs and no President will release al Nashiri and Khalid Sheikh Mohammed alive to again wage illegal war upon the United States. Should they be acquitted due to Constitutional protections, America will finally see the wisdom of our Founding Fathers who gave no authority to the Judiciary branch in war. If they are convicted and pay the full measure for their war crimes, justice will at last be served.

Holder holding KSM death penalty hostage for 9/11 civilian trial? (Update: plug these other damn holes!)

One April 21, 2010, I took issue with this (now repeated) assertion by Attorney General Eric Holder before the Senate Judiciary Committee:

ATTORNEY GENERAL ERIC HOLDER: Yes. In an Article III court, a person can plead guilty to a capital offense; that is not allowed in a military commission.

In fact, 949i(b) of the Military Commissions Act indicates an accused may plead guilty and specifically states that a guilty plea is the equal of a finding of guilty by a panel (a military commission’s jury):

Finding of Guilt After Guilty Plea.–With respect to any charge or specification to which a plea of guilty has been made by the accused in a military commission under this chapter and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without a vote. The finding shall constitute the finding of the commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

Sec. 949m(1) “Numbers of votes required” elaborates

“(a) Conviction.–No person may be convicted by a military commission under this chapter of any offense, except as provided in section 949i(b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken.
“(b) Sentences.–
(1) No person may be sentenced by a military commission to suffer death, except insofar as–
“(A) the penalty of death is expressly authorized under this chapter or the law of war for an offense of which the accused has been found guilty;
“(B) trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial;
“(C) the accused is convicted of the offense by the concurrence of all the members present at the time the vote is taken; and
“(D) all the members present at the time the vote is taken concur in the sentence of death.

It is clear that subsequent to a guilty plea, a finding of guilty by a military judge is commensurate with a unanimous guilty verdict vote by a panel. If that were not true, then a military judge also may not assume lesser thresholds were meant should an accused plead guilty in order to impose any penalty requiring lesser minimums. For example, The MCA also says:

“No person may be sentenced to life imprisonment, or to confinement for more than 10 years, by a military commission under this chapter except by the concurrence of three-fourths of the members present at the time the vote is taken.”

Yet AG Holder is not arguing that a military judge does not have the authority to sentence Khalid Sheikh Mohammed or any of his four lieutenants to life imprisonment, should they plead guilty to charges carrying that as the maximum penalty, without the concurrence of “three-fourths of the members present.”

As Debra Burlingame stated back in April:

“Congress could clear up any ambiguity by amending the statute.” She added, “Why would anyone who supports an Article III capital plea vote against it? The defendant wants to plead guilty.”

But let’s back up to the summer of 2009 when, after a 5-month review by the Department of Justice’s Task Force, the White House announced it would ask Congress to “fix” the Military Commissions Act. Why did they not state then that the death penalty verbiage needed fixing?

If they discovered a problem only after Congress passed legislation last year, then Mr. Holder should stop fear-mongering on TV and ask President Obama to ask Congress to again fix the MCA.

Update: During his November 18, 2009 appearance before the Senate Judiciary Committee, Holder gave no indication that the death penalty subsequent to a possible guilty plea in the bombing of the U.S.S. Cole might not be within the authority of a military judge:

“We will also use every instrument of our national power to bring to justice those responsible for terrorist attacks against our people. For eight years, justice has been delayed for the victims of the 9/11 attacks. It has been delayed even further for the victims of the attack on the USS Cole. No longer. No more delays. It is time, it is past time, to act. By bringing prosecutions in both our courts and military commissions, by seeking the death penalty, by holding these terrorists responsible for their actions, we are finally taking ultimate steps toward justice. That is why I made this decision.”

Which prompts me to point out that just last week the Military Commissions at Gitmo were restarted, Ibrahim Ahmed Mahmoud al Qosi pleaded guilty to conspiracy and material support charges, and, according to the Department of Defense, procedures remain in place to impose the fullest sentence allowed by statute:

Al Qosi faces a maximum penalty of life in prison on the two charges, Iglesias said. His sentence will be determined by 12 military officers as part of the commission at an Aug. 9 sentencing hearing, he said.

So, why is it even an issue over whether a military judge may impose the death penalty, should Khalid Sheikh Mohammed plead guilty before a military commission, when his sentence would be decided by a 12-member panel and the MCA gives them full authority to determine his sentence? If, as Holder says, there is a “real problem,” he should spell it out to the President and Congress and they should plug the damn hole in the statute.

In addition, there has been no “swift and certain justice” for the Cole bombing that President Obama promised last year:

“Both the 9/11 and the Cole families had the president look them in the eye and say, ‘We’re going to close Gitmo, move forward with this process, and hold people accountable,’ ” said Commander Kirk Lippold, a proponent of military trials who was the commanding officer aboard the U.S.S. Cole when it was attacked in Yemen in 2000. “When does an unfulfilled political promise become a lie?” Lippold asked.

At best, al-Nashiri was placed on the back burner of Guantanamo’s military commissions calendar.

Yet what if the answer to Commander Lippold’s question is elected and appointed government officials were hoping for a swarm of appeals over whether Constitutional rights attached to the case the moment al-Nashiri set foot on U.S. soil, those appeals would tie up the case for years, and ultimately the courts would destroy military commissions?

The President and Attorney General can begin to prove their words are their bonds by both restarting al-Nashiri’s military commission immediately, at Gitmo, and asking Congress to take any ambiguity out of the MCA before the summer recess begins.

Urgent Action Alert: nomination of Deputy Attorney General James Cole Must Be Stopped

Urgent Action Alert for [today]! A message from Debra Burlingame of 911 Families for a Safe and Strong America.

Dear 9/11 Families and Friends:

President Obama has nominated James Cole to be the Deputy Attorney General (DAG) at the the Department of Justice. This is a critically important position. While Attorney General Eric Holder is the nominal head of the Justice Department, it is the deputy attorney general who actually runs the day-to-day operations of the entire department. For instance, it was Mr. Holder who, as DAG during the Clinton administration, orchestrated the Sept. 1999 clemencies of 16 terrorists belonging to the FALN, a Puerto Rican separatist group that carried out 146 bombings which killed 9 people and maimed NYPD bomb squad officers. Mr. Holder also facilitated and pushed through the pardon of fugitive Marc Rich, who made billions of dollars engaging in illegal oil trades on behalf of Iranian ayatollahs. Today, the DAG has a pivotal role in formulating and executing decisions dealing with the policy issues surrounding the capture, detention, interrogation and prosecution of suspected Islamic terrorists.

So who is James Cole? As a partner at the law firm of Bryan Cave, he represented Prince Naif Bin Abdulaziz Al Saud, a member of the Saudi royal family and one of the defendants in the 9/11 lawsuit filed on behalf of 9/11 Families against the government of Saudi Arabia and other Saudi individuals by the law firm of Motley Rice. Prince Naif ran the Al Haramain Foundation, a Saudi charity designated in 2004 by the U.S. Treasury Department as a facilitator of terrorism which diverted charitable funds to Al Qaeda both before and after Sept.11, 2001.

Additionally, in 2006, Mr. Cole was also appointed as an independent overseer of insurance giant AIG. The whistleblower non-profit, Government Accountability Project, has come out against his nomination due to the gross irregularities that happened while he was charged with oversight responsibilities prior to its 2008 collapse. See http://www.whistleblower.org/blog/31-2010/529-aig-monitor-james-cole-wrong-choice-for-deputy-attorney-general

In light of this history, it is impossible to fathom how Mr. Cole can ethically carry out his duties and responsibilities as the de facto head of the Justice Department while U.S. troops are fighting terrorists who receive funding and support from organizations associated with the Saudi government and their proxies. This is a direct conflict of interest. Given Saudi NGOs’ continued involvement in terrorist facilitation world-wide and their connection to the Saudi royal family, this conflict of interest will cripple Mr. Cole’s ability to ethically perform his duties as head of a department charged with investigating and prosecuting terrorist facilitators associated with or working for the Saudi government.

Below is an op-ed published by Mr. Cole just two days before the first anniversary of 9/11, in which he compares 9/11 to drug crimes, ordinary murder, rape and mafia-type crimes, saying that the “war on drugs” is actually “a longer term and far more devastating disaster for our country in terms of the number of people affected…” Ironically, Mr. Cole says that the only factor which distinguishes those crimes and the “tragedies of Sept. 11? is that “foreign organizations, possibly even foreign governments, were involved in the planning, funding and carrying out of the Sept. 11 attacks.”

Further, Mr. Cole has gone on record opposing military commissions for any detainees, stating that military commissions are an inferior form of justice which do not provide defendants with adequate due process protections. In light of the fact that the Obama administration continues to drag its feet on an announcement regarding the forum and venue for the trial of Khalid Sheikh Mohammed and the other admitted 9/11 conspirators, Mr. Cole’s nomination is an alarming signal. The public is overwhelmingly opposed to holding these trials in New York federal court. Clearly, the administration needs to hear from us again.

Mr. Cole is scheduled to appear before the Senate Judiciary Committee, Tuesday, June 15. The hearing, calendared so quickly after the announcement of Mr. Cole’s nomination, appears calculated to capitalize on the media’s attention on the oil spill crisis in the Gulf, and to limit our ability to mount public objection.

I urge all 9/11 family members and friends who were disappointed that the administration opposed the 9/11 Families’ opportunity to have their day in court in the Saudi lawsuit, to contact the President Obama, Attorney General Holder, and members of Congress, and express your adamant objection to Mr. Cole’s nomination to Deputy Attorney General.

Respectfully,

Debra Burlingame
Co-founder, 9/11 Families for a Safe & Strong America
www.911familesforamerica.org
media@911familiesforamerica.org

See the 9/11 Families Legal Complaint: http://www.investigativeproject.org/documents/case_docs/1239.pdf

Jam the jihad; a military commission judge should silence KSM’s propaganda

Our nation makes selective use of enemy communications. We intercept to gather intelligence and jam to disrupt enemy command and control; these help shape the battlefield and forces the enemy to fight at a disadvantage. Limiting enemy propaganda is a critical aspect of winning the information battle fought during every war.

Some, including Michael Daly at the New York Daily News, used the subway bomb plotter’s fifteen minutes of fame in Brooklyn’s federal court to claim there would be no harm in prosecuting Khalid Sheikh Mohammed the same way, in the same place:

Why not put Khalid Shaikh Mohammed on trial in New York … He is only going to make himself sound as twisted as Ahmedzay. He is sure to sound exactly like a monster who would murder thousands of innocents. He certainly is not going to sway anybody who has any sense and decency.

President Franklin Roosevelt provided no public forum to enemy war criminals to spew pro-Nazi propaganda. On June 13, 1942, eight German saboteurs landed on Long Island and Florida shores and buried their uniforms on the beach. According to the U.S. Department of Justice:

The purpose of the invasions was to strike a major blow for Germany by bringing the violence of war to our home ground through destruction of America’s ability to manufacture vital equipment and supplies and transport them to the battlegrounds of Europe; to strike fear into the American civilian population, and diminish the resolve of the United States to overcome our enemies.

All eight were captured a week later and six of the eight — including American citizen Herbert Hans Haupt — were executed a mere fifty-six days after landing. Their military tribunals were witnessed by a few selected journalists; the courtroom was closed to them when classified information was discussed and their news reports were censored. Germany made no further attempt to attack America on its soil during WWII.

Why help Khalid Sheikh Mohammed slaughter thousands more?

At Gitmo, judges and prosecutors have a ‘pause button’ close at hand to instantly silence the sound outside the glass enclosed section of the courtroom to prevent the accidental release of classified information.

It should also be used to silence KSM’s propaganda whenever he attempts to incite more to fight our troops and attack the innocent. The defense lawyers and mainstream media (and al Jazeera) would denounce the practice. So what? (They would denounce his trial by military commission regardless.) FDR ignored their complaints and informed the Supreme Court he would do the same to them, no matter how they ruled.

Khalid Sheikh Mohammed is not some righteous dissident; he is a senior member of al Qaeda. America’s enemies have no Constitutional right to use our system to promote their causes.

Let’s jam the jihad as we prosecute the 9/11 conspirators.