Military And Civilian Attorneys Challenge The Military Commissions Act In Second Round Of Guantanamo Pretrial Motions

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
Guantanamo 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 Guantanamo 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 Guantanamo 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 Guantanamo 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 Guantanamo 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: www.aclu.org/johnadams