Friday, May 30, 2014

An "admission" of note: prosecutor, US military commissions

In the on-going pretrial hearings in the case of United States v. al Nashiri, the defense was demanding access to certain documents, when the following exchange took place with the Military Judge [MJ]:
MJ [COL POHL]: I notice in your reply, there is no authority cited one way  or the other. Is there any authority for me to order another branch of the government to release information?
TC [CDR LOCKHART]: There is no authority for you to order another branch of the government to release the report. You certainly have other options available.   . . .
LINK, at page 4375

"TC" stands for Trial Counsel, the military's vernacular for prosecutor.

What was being argued about was this:
Separately Wednesday, defense lawyers asked Pohl to get them a copy of the entire Senate Intelligence Committee’s “Torture Report.” It details not only Nashiri’s treatment in CIA custody but describes interrogations of other captives that might implicate their client.
Link to Miami Herald article

What is interesting here is the military prosecution's argument that a military judge in a court [here, military commission] created by Congress pursuant to Article I, U.S. Const., does not have the authority to order discovery of documents for the defense, then to be logically consistent, a military judge in a court-martial, also created under Article I, does not have that authority either. That strikes imho to the core of the right to a fair trial under accepted definitions of due process.

Whether or not the prosecution's premise is correct as a matter of U.S. constitutional law is not the point.  What is important here is the fact that the government is now making this argument. The practical effect of the government's position is that the military judge becomes subservient to the dictates of the Chief Prosecutor -- an untenable premise under any, civilian or military, judicial process.
Read more here:

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