Off the Record: Unlawful Influence on the War Crimes Proceedings

This is the second post in a blog series by Dr Kasey McCall-Smith examines some of the crucial legal issues and broader public questions raised regarding the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is part of her project ‘Torture on Trial’ and funded by a grant from the Royal Society of Edinburgh.

• Read the first post: Taking a Step Back – A Primer on the International Prohibition against Torture

In the 9/11 war crimes trial taking place in Guantánamo, an array of motions have been filed regarding unlawful influence on the US v. Khalid Shaikh Mohammad, et. al.(9/11 case) proceedings. They began with complaints regarding statements by then-President Obama and continue to the present with complaints regarding President Trump, Secretary of Defense Mattis, former Attorneys General Sessions and Holder and CIA Director Gina Haspel. These motions, all based on section 949b of the 2009 Military Commissions Act, cover a range of statements and actions.

During the April-May 2018 proceedings, the influence of current US President Trump was raised as lawyers debated the influence of statements made by Trump as the commander in chief of the US military. The relevant statements focused on the president’s response to the Bowe Bergdahl v. US courts martialand also the 31 October 2017 New York incident where an alleged terrorist drove a van onto a bike path killing eight people. Trump’s statements on the campaign trail and after his election were also potentially problematic for the 9/11case and attacked the integrity of the military justice system. His statements and twitter posts explicitly called into question the administration of justice and constitutional protections in the US. Defence counsel in the 9/11 war crimes tribunal argue that collectively these successive statements by US presidents and other government officials equate to unlawful influence (UI), a concept drawn from provisions in the US Uniform Code of Military Justice prohibiting Unlawful Command Influence (UCI). UI is a concept set out in 10 USC §837 and article 37 of the UCMJ and is deemed the ‘mortal enemy’ of military justice and also violates due process as guaranteed by the US Constitution and the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights (ICCPR). The concept applies here as the governing law of the trial is the Military Commissions Act 2009 (MCA 2009) – combining rules of military, domestic and international law – and the president is the constitutional Commander-in-Chief of the US military.

But it is not merely careless remarks of political leaders that threaten the stability of the trial.The potential impact of alleged UI by Trump as the Commander in Chief was exacerbated when, at the July 2018 proceedings, defense counsel raised the issue of unlawful influence once again based on statements Gina Haspel made under oath during her Senate confirmation hearings for the post of CIA Director earlier in the year. Counsel for Khalid Shaikh Mohammad argued that Haspel’s assertions of his client’s guilt are either coercion or unlawful influence or create the appearance of unlawful influence on the on-going proceedings. Particularly problematic is Haspel’s role as the ultimate original classification authority as CIA Director. In the 9/11case, the government controls all defense access to classified evidence and this issue plagues every step of the commission. It was argued that Haspel’s statements equate to unlawful influence under MCA 2009 §949b(a)(2) and Rule104 of the Rules of the Military Commission, expansive rules governing the applicable procedures in the 9/11 trial.

The November 2018 commission proceedings heard argument on a fresh round of UI claims. This time regarding UI by former Attorney General Jeff Sessions and Secretary of Defense Jim Mattis in the firing of the Military Commissions Convening Authority, Harvey Rishikof, who was negotiating plea agreements with several of the 9/11 defendants at the time he was terminated as Convening Authority. As part of its claim, defense counsel heard testimony from the then-acting General Counsel for the Department of Defense, William Castle. In approximately 8 hours of testimony over a secured video line, Mr Castle acknowledged that he had been told by Sessions that there should be ‘no deal’ but insisted that his suggestion to fire Rishikof was solely due to Rishikof’s failure to ‘coordinate’ his office’s actions in accordance with Department of Defense procedure.

The cumulative effect of the statements about the defendants, the slow military commissions process or possible influence over the on-going military commission proceedings could result in either a dismissal or the removal of the death penalty if the recently appointed judge in the commission, Keith Parrella, finds that the comments collectively amount to unlawful influence. As explained in court, the President exercises an extensive amount of influence and should not call into question justice administered through proper legal channels, nor should various high-ranking officials seek to exercise influence over military commission proceedings. Even if this particular motion fails on this occasion, the court is on notice that eyes will be watching Mr Trump and his government and continued negative commentary could cumulatively result in abatement of the case at a later date. It has already resulted in the judge authorizing extensive voir dire of any potential military panel in future as a remedy to the previous comments. If the ultimate measure of abatement is taken in future it would no doubt be in accordance with variable applicable rules of law but simultaneously deprive the victims’ family members of the justice they so desperately seek. Tracking the various arguments across the 2018 hearings the message is clear: the government needs stop meddling in the military commissions and let justice run its course.