DOCSLIB.ORG

Military Commissions Trial Judiciary Guantanamo Bay, Cuba

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Military Commissions Trial Judiciary Guantanamo Bay, Cuba MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA D-024 Government Response to Defense Motion v. to Exclude Evidence and Testimony – Jurisdictional Hearing NOOR UTHMAN MUHAMMED 25 August 2010 1. Timeliness. This response is timely filed pursuant to Military Commissions Trial Judiciary Rule of Court 3.6.b. The Defense motion was received on 18 August 2010. 2. Relief Requested. The Defense motion should be denied. 3. Overview. There is no basis in fact or law to exclude the items requested by the Defense from consideration during the Commission’s jurisdictional inquiry. Separate and apart from the preliminary nature of the jurisdictional hearing, to which strict evidentiary rules generally do not apply, every item the Government has submitted for consideration is relevant, probative, and germane to the jurisdictional issue before the Commission. Should the Commission find that the Government has not been timely in providing discovery or expert assistance to the Defense, the appropriate course is to consider motions to compel or for continuance, not to exclude relevant, probative evidence from consideration on the jurisdictional issue. 4. Burden and Standard of Proof. The Defense as movant bears the burden of proof and persuasion that it is entitled to the requested relief. Rule for Military Commission (R.M.C.) 905(c)(2)(A). US V. NOOR AE 74-A 1 of 17 5. Facts a. The Government agrees that the discovery process in this case was initially slowed in connection with the forum selection decision by the new Administration. b. The Government agrees that it began providing discovery to the Defense in response to the Commission’s discovery orders. Since then, the Defense has not only inspected a portion of the physical evidence, but has also received tens of thousands of pages of discovery, including high-resolution photographs, photocopies, scans, analytical “gists” or summaries, verbatim translations, and analytical reports relating to the physical evidence. The Defense has also received a written accounting of the physical evidence as well as Government evidence and witness lists for both the jurisdictional hearing and the case on the merits. The Government continues to comply with its discovery obligations by searching for, gaining clearance to produce, and releasing additional discovery to the Defense in response to its requests. c. The Government agrees that over the past several weeks, in compliance with the Commission’s orders, it has provided the Defense with an increasingly detailed list of witnesses and evidence for use at the jurisdictional hearing, culminating in the list the Government submitted on 13 August 2010 per the Commission’s docketing order. By that date, the Defense had received copies of all the materials the Government identified for use at the jurisdictional hearing, including two forensic reports relating to physical evidence collected in the safehouse where the Accused was captured. One of these reports, prepared by the Forensic Document Laboratory at the Office of U.S. Immigrations and Customs Enforcement (ICE), finds that several of the passports collected from the safehouse had been tampered with or falsified in some way, such as by photograph substitution or other material alteration. See ICE report at 2-4. The other report, prepared by an explosive device examiner with the Federal Bureau of Investigation 2 US V. NOOR AE 74-A 2 of 17 (FBI) Laboratory’s Explosives Unit, opines that the various tools, electronic components, circuitry, and training materials collected from the safehouse where the Accused was captured could be used for training in the construction of electronic circuits, including switching circuits used to initiate improvised explosive devices (IEDs). See FBI report at 4. d. The Government agrees that the Defense submitted requests to the Convening Authority for the appointment of expert consultants in the fields of fingerprint examination and forensic document examination, prior to receiving all the Government’s discovery in those areas, and that on 12 August 2010 the Convening Authority denied the Defense requests. Having still not received a final fingerprint report from the FBI lab, the Government released various interim reports to the Defense and removed any indication from its witness and evidence list for the jurisdictional hearing that it would offer fingerprint evidence for the Commission’s consideration on the jurisdictional issue. After receiving additional discovery materials from the Government, the Defense submitted follow-up requests to the Convening Authority on 23 August 2010 for appointment of the same fingerprint and forensic document experts. The Convening Authority has not yet acted on these follow-up requests. e. The Government agrees that on 12 August 2010 the Convening Authority denied a Defense request for the appointment of an expert consultant in the field of explosives, specifically, forensic chemistry. While the FBI explosive device examiner’s report identified for use by the Government does touch on the manufacture of chemical explosive materials, it primarily focuses on how electronic components are used to make explosive devices, as opposed to how chemical components are used to make explosive materials. The FBI report, for example, discusses how Casio watches and other electronic circuitry like the materials found in the safehouse can be used to construct electronic timing and power units (TPUs), which can be used 3 US V. NOOR AE 74-A 3 of 17 to trigger the high-explosive main charge in an IED. See FBI report at 5. f. The Government agrees that on 17 August 2010, after receiving the FBI report and additional related discovery from the Government, the Defense submitted a follow-up request to the Convening Authority for appointment of a different expert consultant in the field of explosive devices. The Convening Authority has not yet acted on this follow-up request. The Government agrees that the FBI explosive device examiner’s report analyzes the tools, electronic components, circuits, and written training materials collected from the safehouse in rendering opinions that are consistent with the Government’s proffer to the Commission—that the safehouse where the Accused was captured was being used as a training facility where, among other things, individuals were being trained on the construction of electronic triggering devices for use in IEDs. g. The Government agrees that part of its evidence at the jurisdictional hearing consists of statements of the Accused and other detainees at Guantanamo Bay. The Government has produced, and continues to search for, gain clearance to produce, and release any and all discoverable information in its possession that relates to the Accused’s detention, interrogation, and treatment both prior to and since his transfer to Guantanamo Bay, as well as similar discoverable information for other hearsay declarants. h. The Government agrees that as part of its evidence at the jurisdictional hearing it will introduce testimony from a recognized expert in the field of jihadist organizations in Afghanistan and elsewhere, including but not limited to al Qaeda. Mr. ’s film, entitled “The Al Qaeda Plan,” provides an historical overview of these Afghanistan-based jihadist groups, including their leadership, structure, and affiliations, as well as their declarations of war on and acts of hostilities against the United States. Mr. 4 US V. NOOR AE 74-A 4 of 17 has been qualified as an expert and has testified in these and related areas in dozens of cases in U.S. federal court, U.S. military commissions, and foreign courts. 6. Law and Argument It is well established that preliminary questions and other threshold determinations generally do not invoke strict application of the rules of evidence. See R.M.C. 104(a); accord Fed. R. Evid. 104(a). See also Fed. R. Evid. 1101(d) (strict rules of evidence do not apply to grand jury proceedings, extradition proceedings, and preliminary examinations in criminal cases, inter alia) United States v. SLW, 406 F.3d 991, 995 (8th Cir. 2005) (strict rules of evidence do not apply to juvenile transfer proceedings); United States v. De La Fuente, 548 F.2d 528 (5th Cir. 1977) (strict rules of evidence do not apply to suppression hearings); United States v. Lee, 541 F.2d 1145 (5th Cir. 1977) (same). As the parties have discussed over the course of several R.M.C. 802 conferences, issues of judicial economy warrant that the Commission’s jurisdictional hearing not depart from the above general rule. Otherwise, given the similarities between the jurisdictional elements and the elements of the substantive offenses charged, the Government would essentially be compelled to put on its entire case multiple times, which is unnecessarily and unduly burdensome. The Government is not seeking to admit into evidence the items it has identified and submitted for the Commission’s consideration on the jurisdictional issue; hence, use of such evidence at trial will still be subject to the same rules for admissibility as all the other evidence. Per the Commission’s docketing order of 6 August 2010, the Government understands that the Commission’s position regarding statements of the Accused and other witnesses requires some foundation to be offered at this preliminary stage to demonstrate that these statements were not obtained through torture or cruel, inhuman, or degrading treatment. The Government has 5 US V. NOOR AE 74-A 5 of 17 therefore identified and intends to call foundational witnesses for the statements of the Accused and other hearsay declarants, such that these statements may be considered by the Commission in determining whether it has jurisdiction over the Accused. The Defense’s request for Daubert hearings or other formal foundations for evidence adduced from Government experts at the jurisdictional hearing is misplaced at this preliminary stage. Military Commission Rule of Evidence (M.C.R.E.) 702 on its face applies to expert testimony or evidence that is offered into evidence before the trier of fact, not submitted for judicial consideration on a preliminary matter.
Load more

Recommended publications
  • 1. (SI/NF) Personalinformation: Placeofbirth: Kasala, Sudan (SU
    SECRET NOFORN 20301011 DEPARTMENT OF DEFENSE JOINT TASK FORCE GUANTANAMO GUANTANAMO BAY, CUBA APO AE 09360 JTF GTMO- CG 11 October2005 MEMORANDUMFORCommander United States SouthernCommand, 3511NW Avenue, Miami, FL 33172. SUBJECT : Recommendation for Continued Detention Under Control (CD) for Guantanamo Detainee, ISN: ( S) JTF GTMO DetaineeAssessment 1. ( SI/ NF) Personal Information: JDIMS ReferenceName: Zamir Muhammed Aliases and Current / True Name: Muhammed Noor Uthman, Akrima, Abu AlHareth , Farouq AlKamari Place of Birth: Kasala, Sudan (SU ) Dateof Birth: 1 January 1962 Citizenship: Sudanese 29.04 2005 InternmentSerial Number(ISN) 00000707DP 2. (FOUO) Health: Detaineeis in good health. He has refused treatment for latent TB, but has no significant medical issues. Detaineedoes suffer from seasonal allergic rhinitis, but it is easily controlled by medications. He has no known drug allergies. 3. SI/NF ) JTF GTMO Assessment: a . (S ) Recommendation : JTF GTMO recommends this detainee for Continued Detention Under Control (CD) . b . ( SI Summary: JTF GTMO previously assessed detainee as Retain in Control ( ) on 27 August 2004. CLASSIFIED BY: MULTIPLE SOURCES REASON : 12958 SECTION 1.5(C ) DECLASSIFY ON : 20301011 SECRETI 20301011 SECRET // 20301011 JTF GTMO -CG SUBJECT : Recommendation for Continued Detention Under Control ( CD) for Guantanamo Detainee , ISN: 000707DP (S) Detainee is assessed as a probable member ofAl-Qaida. Senior Al-Qaida members identified detainee as a senior trainer at the Khaldan training camp near Khowst, Afghanistan (AF) . Detainee trained hundreds of jihadists including high-level Al-Qaida terrorists. Detainee worked under senior Al- Qaida lieutenant, Abu Zubaydah, who directed Khaldan camp. He admitted being Khaldan Camp facilitator Ibn Sheikh Al assistant. Detainee was a primary weapons trainer and supply officer for the camp.
    [Show full text]
  • Forensic Mental Health Evaluations in the Guantánamo Military Commissions System: an Analysis of All Detainee Cases from Inception to 2018 T ⁎ Neil Krishan Aggarwal
    International Journal of Law and Psychiatry 64 (2019) 34–39 Contents lists available at ScienceDirect International Journal of Law and Psychiatry journal homepage: www.elsevier.com/locate/ijlawpsy Forensic mental health evaluations in the Guantánamo military commissions system: An analysis of all detainee cases from inception to 2018 T ⁎ Neil Krishan Aggarwal Clinical Psychiatry, Department of Psychiatry, Columbia University Medical Center, Committee on Global Thought, Columbia University, New York State Psychiatric Institute, United States ABSTRACT Even though the Bush Administration opened the Guantánamo Bay detention facility in 2002 in response to the September 11, 2001 attacks in the United States, little remains known about how forensic mental health evaluations relate to the process of detainees who are charged before military commissions. This article discusses the laws governing Guantánamo's military commissions system and mental health evaluations. Notably, the US government initially treated detaineesas“unlawful enemy combatants” who were not protected under the US Constitution and the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment, allowing for the use of “enhanced interrogation techniques.” In subsequent legal documents, however, the US government has excluded evidence obtained through torture, as defined by the US Constitution and the United Nations Convention Against Torture. Using open-source document analysis, this article describes the reasons and outcomes of all forensic mental health evaluations from Guantánamo's opening to 2018. Only thirty of 779 detainees (~3.85%) have ever had charges referred against them to the military commissions, and only nine detainees (~1.16%) have ever received forensic mental health evaluations pertaining to their case.
    [Show full text]
  • Unclassified//For Public Release Unclassified//For Public Release
    UNCLASSIFIED//FOR PUBLIC RELEASE --SESR-Efll-N0F0RN-­ Final Dispositions as of January 22, 2010 Guantanamo Review Dispositions Country ISN Name Decision of Origin AF 4 Abdul Haq Wasiq Continued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war. AF 6 Mullah Norullah Noori Continued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war. AF 7 Mullah Mohammed Fazl Continued detention pursuant to the Authorization for Use of Military Force (2001 ), as informed by principles of the laws of war. AF 560 Haji Wali Muhammed Continued detention pursuant to the Authorization for Use of Military Force (2001 ), as informed by principles of the laws of war, subject to further review by the Principals prior to the detainee's transfer to a detention facility in the United States. AF 579 Khairullah Said Wali Khairkhwa Continued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war. AF 753 Abdul Sahir Referred for prosecution. AF 762 Obaidullah Referred for prosecution. AF 782 Awai Gui Continued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war. AF 832 Mohammad Nabi Omari Continued detention pursuant to the Authorization for Use of Military Force (2001 ), as informed by principles of the laws of war. AF 850 Mohammed Hashim Transfer to a country outside the United States that will implement appropriate security measures. AF 899 Shawali Khan Transfer to • subject to appropriate security measures.
    [Show full text]
  • The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues
    The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues (name redacted) Legislative Attorney August 4, 2014 Congressional Research Service 7-.... www.crs.gov R41163 The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues Summary On November 13, 2001, President Bush issued a Military Order (M.O.) pertaining to the detention, treatment, and trial of certain non-citizens in the war against terrorism. Military commissions pursuant to the M.O. began in November 2004 against four persons declared eligible for trial, but the Supreme Court in Hamdan v. Rumsfeld invalidated the military commissions as improper under the Uniform Code of Military Justice (UCMJ). To permit military commissions to go forward, Congress approved the Military Commissions Act of 2006 (MCA), conferring authority to promulgate rules that depart from the strictures of the UCMJ and possibly U.S. international obligations. Military commissions proceedings were reinstated and resulted in three convictions under the Bush Administration. Upon taking office in 2009, President Obama temporarily halted military commissions to review their procedures as well as the detention program at Guantánamo Bay in general, pledging to close the prison facilities there by January 2010, a deadline that passed unmet. One case was moved to a federal district court. In May 2009, the Obama Administration announced that it was considering restarting the military commission system with some changes to the procedural rules. Congress enacted the Military Commissions Act of 2009 (MCA 2009) as part of the Department of Defense Authorization Act (NDAA) for FY2010, P.L. 111-84, to provide some reforms the Administration supported and to make other amendments to the Military Commissions Act, as described in this report.
    [Show full text]
  • A. Supreme Court Precedent ...55
    United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued October 22, 2014 Decided June 12, 2015 No. 11-1324 ALI HAMZA AHMAD SULIMAN AL BAHLUL, PETITIONER v. UNITED STATES OF AMERICA, RESPONDENT On Petition for Review from the United States Court of Military Commission Review Michel Paradis, Counsel, Office of the Chief Defense Counsel, argued the cause for petitioner. With him on the briefs were Mary R. McCormick, Counsel, and Major Todd E. Pierce, JA, U.S. Army (Ret.). Jeffrey T. Renz was on the brief for amici curiae First Amendment Scholars and Historians and The Montana Pardon Project in support of petitioner. Agnieszka M. Fryszman was on the brief for National Institute of Military Justice as amicus curiae in support of petitioner. McKenzie A. Livingston was on the brief for amici curiae Robert D. Steele and other former members of the Intelligence 2 Community in support of petitioner. Robert Barton and Thomas J. McIntosh were on the brief for amicus curiae Professor David W. Glazier in support of petitioner. Jonathan Hafetz was on the brief for amici curiae Asian American Legal Defense and Education Fund, et al., in support of petitioner. John F. De Pue, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Steven M. Dunne, Chief, Appellate Unit, and Joseph Palmer, Attorney. Francis A. Gilligan, Office of Military Commission, Lisa O. Moreno and Jeffrey M. Smith, Attorney, U.S. Department of Justice, entered appearances. James A. Schoettler Jr. was on the brief for amici curiae Former Government Officials, et al., in support of respondent.
    [Show full text]
  • Military Commissions: a Place Outside the Law’S Reach
    MILITARY COMMISSIONS: A PLACE OUTSIDE THE LAW’S REACH JANET COOPER ALEXANDER* “We have turned our backs on the law and created what we believed was a place outside the law’s reach.” Colonel Morris D. Davis, former chief prosecutor of the Guantánamo military commissions1 Ten years after 9/11, it is hard to remember that the decision to treat the attacks as the trigger for taking the country to a state of war was not inevitable. Previous acts of terrorism had been investigated and prosecuted as crimes, even when they were carried out or planned by al Qaeda.2 But on September 12, 2001, President Bush pronounced the attacks “acts of war,”3 and he repeatedly defined himself as a “war president.”4 The war * Frederick I. Richman Professor of Law, Stanford Law School. I would like to thank participants at the 2011 Childress Lecture at Saint Louis University School of Law and a Stanford Law School faculty workshop for their comments, and Nicolas Martinez for invaluable research assistance. 1 Ed Vulliamy, Ten Years On, Former Chief Prosecutor at Guantanamo Slams ‘Camp of Torture,’ OBSERVER, Oct. 30, 2011, at 29. 2 Previous al Qaeda attacks that were prosecuted as crimes include the 1993 bombing of the World Trade Center, the Manila Air (or Bojinka) plot to blow up a dozen jumbo jets, and the 1998 embassy bombings in East Africa. Mary Jo White, Prosecuting Terrorism in New York, MIDDLE E.Q., Spring 2001, at 11, 11–14; see also Christopher S. Wren, U.S. Jury Convicts 3 in a Conspiracy to Bomb Airliners, N.Y.
    [Show full text]
  • Thirty-Five Years After the US Supreme Court
    Index: AMR 51/001/2014 9 January 2014 12 YEARS OF GUANTÁNAMO DETENTIONS, 12 YEARS OF DOUBLE STANDARDS In retrospect, the entire detention and interrogation strategy was wrong. We squandered the goodwill of the world after we were attacked by our actions in Guantánamo, both in terms of detention and torture Major General Michael Lehnert (ret.), first commander of detentions at Guantánamo (2002), December 20131 As the US detentions at Guantánamo enter their 13th year, the world should take the USA to task for its abject failure to live up to the international human rights standards it so often demands of others. The recent flurry of detainee transfers from Guantánamo – nine in December 2013, transfers which followed a mass hunger strike at the base during the year2 – cannot disguise the fact that under its flawed “law of war” framework the USA has yet to fully recognize its human rights obligations in this context, let alone apply them. Instead this US detention regime continues to undermine principles of criminal justice and remains an affront to the Universal Declaration of Human Rights and other international instruments, the very same standards against which the USA yearly assesses the human rights records of other countries. Twelve years after the first detainees were brought to Guantánamo, strapped down in planes like cargo, more than 150 men remain held there, most of them held without charge or trial. A few face trial under a military commission system that does not meet international fair trial standards. Meanwhile, impunity for crimes under international law committed by US personnel against current and former Guantánamo detainees is a festering injustice that leaves the USA in serious violation of its international law obligations on truth, accountability and remedy.
    [Show full text]
  • Military Commissions and Aggregate Article 6 Processing (Summer 2012)
    Saint Louis University Law Journal Volume 56 Number 4 Justice Systems Circa 2011: Public Courts, Military Commissions and Aggregate Article 6 Processing (Summer 2012) 2012 Military Commissions: A Place Outside the Law’s Reach Janet Cooper Alexander Stanford Law School, [email protected] Follow this and additional works at: https://scholarship.law.slu.edu/lj Part of the Law Commons Recommended Citation Janet C. Alexander, Military Commissions: A Place Outside the Law’s Reach, 56 St. Louis U. L.J. (2012). Available at: https://scholarship.law.slu.edu/lj/vol56/iss4/6 This Childress Lecture is brought to you for free and open access by Scholarship Commons. It has been accepted for inclusion in Saint Louis University Law Journal by an authorized editor of Scholarship Commons. For more information, please contact Susie Lee. SAINT LOUIS UNIVERSITY SCHOOL OF LAW MILITARY COMMISSIONS: A PLACE OUTSIDE THE LAW’S REACH JANET COOPER ALEXANDER* “We have turned our backs on the law and created what we believed was a place outside the law’s reach.”1 Ten years after 9/11, it is hard to remember that the decision to treat the attacks as the trigger for taking the country to a state of war was not inevitable. Previous acts of terrorism had been investigated and prosecuted as crimes, even when they were carried out or planned by al Qaeda.2 But on September 12, 2001, President Bush pronounced the attacks “acts of war,”3 and he * Frederick I. Richman Professor of Law, Stanford Law School. I would like to thank participants at the 2011 Richard J.
    [Show full text]
  • Dropped Charges, Overturned Convictions, and Delayed Trials in Guantanamo Military Commissions
    FACT SHEET Dropped Charges, Overturned Convictions, and Delayed Trials in Guantanamo Military Commissions Those eager for swift justice against accused statements from the time of his capture because terrorism suspects have at times called for sending he was tortured, and because he had won his suspects to the military commission system in habeas petition.4 He has not since been charged Guantanamo based on fears that suspects may be with any war crimes. acquitted in a civilian court. But the track record of David Hicks: Charged in 2004 with conspiracy, the Guantanamo military commissions demonstrates attempted murder, and aiding the enemy.5 These that they offer anything but swift justice. Charges are charges were dropped in 2006. When he was routinely dropped or overturned, and the few cases charged again in 2007, he was only charged with awaiting trial are mired in delays that have dragged providing material support for terrorism, since the on for years. commissions’ convening authority concluded Federal courts, by contrast, have proven both swift there was no “probable cause” to justify the and effective at prosecuting terrorism cases.1 Over attempted murder charge.6 660 individuals have been convicted of terrorism- Binyam Mohamed: Accused of training and related crimes in federal courts since 9/11,2 in plotting attacks on targets in the United States, contrast to the eight convictions in the military including a plan to detonate a “dirty bomb,”7 and commissions (three of which have been overturned charged with conspiracy and material support for completely and one partially). Yes, suspects may be terrorism in 2005.
    [Show full text]
  • ENDNOTES Endnotes
    CHAPTER 1 ENDNOTES Endnotes 1 Guantánamo Remarks Cost Policy Chief His Job, CNN (Feb. 2, 2007), available at http://www.cnn. com/2007/US/02/02/gitmo.resignation (“When corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms.”). 2 Task Force staff interview with Moazzam Begg, Omar Deghayes, Bisher al-Rawi (Apr. 17, 2012) [hereinafter Begg, Deghayes, al-Rawi Interview]. 3 Neil A. Lewis, U.S. Military Eroding Trust of Detainees, Lawyers Say, N.Y. TIMES (Mar. 9, 2005), available at http://www.nytimes.com/2005/03/08/world/americas/08iht-gitmo.html (“Another lawyer, Marc Falkoff of New York, whose firm represents several Yemenis at the naval base in Cuba, said some of his clients had told him that a person who said he was a lawyer and had civilian clothes had conferred several times with some detainees. That person, Falkoff said his clients had told him, later appeared at the detention center in uniform, leading the inmates to distrust anyone claiming to be a lawyer and acting in their interest.”). See also Neil A. Lewis, Detainee’s Lawyer Says Captors Foment Mistrust, N.Y. TIMES (Dec. 7, 2005), available at http://www.nytimes.com/2005/12/07/international/07hamdan.html (“The Guantánamo authorities violated a court order by moving a prisoner from the general population there and placing him in close contact with a hard-core operative for Al Qaeda known for urging detainees to refuse to cooperate with their lawyers, according to papers filed with the United States District Court here by Lt.
    [Show full text]
  • Military Commissions Revived: Persisting Problems of Perception
    The University of New Hampshire Law Review Volume 9 Number 2 University of New Hampshire Law Article 7 Review March 2011 Military Commissions Revived: Persisting Problems of Perception Devon Chaffee Human Rights First’s Law and Security Program Follow this and additional works at: https://scholars.unh.edu/unh_lr Part of the Military, War, and Peace Commons, and the National Security Law Commons Repository Citation Devon Chaffee, Military Commissions Revived: Persisting Problems of Perception, 9 U.N.H. L. REV. 237 (2011), available at http://scholars.unh.edu/unh_lr/vol9/iss2/7 This Article is brought to you for free and open access by the University of New Hampshire – Franklin Pierce School of Law at University of New Hampshire Scholars' Repository. It has been accepted for inclusion in The University of New Hampshire Law Review by an authorized editor of University of New Hampshire Scholars' Repository. For more information, please contact [email protected]. File: Chaffee - Vol. 9, Iss. 2, V3 Created on: 3/12/2011 12:57:00 AM Last Printed: 3/22/2011 1:34:00 AM Military Commissions Revived: Persisting Problems of Perception * DEVON CHAFFEE TABLE OF CONTENTS I. INTRODUCTION ......................................................................... 237 II. CREATING A SYSTEM FROM SCRATCH …T HREE TIMES ............. 240 III. LACK OF TRANSPARENCY ......................................................... 246 IV. LACK OF A PRINCIPLED DISTINCTION POINTS TO SECOND CLASS OF JUSTICE ..............................................................................
    [Show full text]
  • STIPULATION of FACT ) NOOR UTHMAN MUHAMMED ) ) January ,.Loll
    UNITED STATES ) ) v. ) STIPULATION OF FACT ) NOOR UTHMAN MUHAMMED ) ) JanUary _,.lOll I. This Stipulation ofFact is entered into by the Prosecution and Defense knowingly and voluntarily in the case of United States v. Noor Uthman Muhammed. It is hereby stipulated and agreed, by and between the Prosecution and Defense, with the express consent ofthe ,Accused, that the following facts are true and, based on the evidence the Prosecption intends to introduce against the Accused, could be proven beyond a reasonable doubt. 2. The Accused is an alien unprivileged enemy belligerent, as defined by the Military Commissions Act of2009 (MCA). The Accused is, and has been at all times relevant to these proceedings, a person subject to trial by military commission under Section 948c ofthe MCA. The Accused has never been a citizen ofthe United States and is therefore an "alien," The Accused is an "Cherny belligerent" because he has purposefully and materially supported hostilities against the United States and its coalition partners. The Accused is an "unprivileged" belligerent because he does not fall within one ofthe eight categories enumerated under Article 4 ofthe Geneva Convention Relative to the Treatment ofPrisoners ofWar: (1) He is n~t a member ofthe armed forces ofa Party to the conflict, including militia or volunteer corps fonning part ofsuch anned forces; (2) He is not a member ofsome other militia or volunteer corps, including organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory,
    [Show full text]