79.1 F
Washington D.C.
Friday, June 21, 2024

New George Mason University Report Suggests Ways to Speed 9/11 Trials

The U.S. military justice system is designed for military personnel, not terrorists, says a new report from the National Security Institute (NSI) at George Mason University as it calls for reform.

Soon after the Sept. 11, 2001, attacks, President George W. Bush signed an order authorizing military commissions to prosecute international terrorists for violations of the laws of war. However, in its 2006 decision Hamdan v. Rumsfeld, the Supreme Court quashed those efforts and Congress was needed to re-establish the commissions, which was done through the Military Commissions Acts of 2006 and 2009.

There are currently three military commissions actively engaged in protracted pre-trial litigation concerning seven defendants, including Khalid Sheikh Mohammed and four others charged as co-conspirators related to the 9/11 plot.

Many factors have contributed to the lengthy proceedings and pre-trial litigation, but the NSI Law and Policy paper says congressional attention to three key issues has the potential to eliminate significant impediments to reaching trial.

These issues are:

Curbing Misinterpretation and Abuse of the Unlawful Influence Statute

The sheer number of allegations concerning unlawful influence demonstrate the need for reforms. The report’s author, Adam R. Pearlman, says the “Apparent Unlawful Influence” doctrine should not apply to military commissions because the underlying rationale is inapplicable. Pearlman adds that relying on the prohibition against actual unlawful influence is a better approach.

Restoring the Contempt Power of Commissions Trial Judges

A federal court ruled last year that military commissions trial judges cannot unilaterally find someone in contempt. The “contempt power” refers generally to the inherent and unilateral power of a judge to enact punishments for acts that obstruct the court’s orders or the administration of the justice system.

Clarifying Permissible Detainee Monitoring

The military commissions defense bar has raised several allegations of government surveillance of attorney-client meetings at Guantanamo Bay, but the report says there is precedent for conducting surveillance of detained or imprisoned terrorists during attorney-client meetings for intelligence and force protection purposes.

GITMO Teams Will ‘Stay with the Case as Long as Necessary’ to Bring Justice for 9/11 Attacks

The report sets out three actionable recommendations to address these issues.

  1. First, Congress should amend current law to clarify that the military justice common law doctrine of “apparent unlawful command influence” does not apply to proceedings under the Military Commissions Act, and to provide for appeals of findings of actual unlawful influence. The proposed amendment to the unlawful influence statute would hold judges accountable for rigorous fact-finding, rather than conjecture concerning appearances in this highly public process, about which passions run high from all sides of the bar and political spectrum.
  2. Second, Congress should amend current law to provide military commissions judges with a unilateral contempt power consistent with those found in the criminal and military justice systems. Amending the contempt provision will restore to the military commissions trial judiciary a basic power all other judges have – the power to control proceedings in their courtrooms.
  3. Finally, Congress should consider a means to clarify that the statutory right to counsel in military commissions does not encompass a right to be free from monitoring for security, intelligence, and force protection purposes, and establish a framework to ensure any surveillance is walled-off from military commission proceedings. Pearlman says clarifying that there is no inherent due process concern with legitimate collection against national security targets likely to have foreign intelligence and information related to force protection concerns will remove a critical distraction from the system.

Beyond those recommended in the paper, Pearlman mentions additional measures Congress might consider:

  • Establishing military commissions as the trial judges’ primary duty, with the location of the proceedings as their primary duty station.
  • Clarify that the authority to dismiss defense counsel from their representational duties after an attorney-client relationship has been established lies with commissions trial judges, not the Chief Defense Counsel.
  • Streamlining the arduous discovery process.
  • Examining the practice of having the accused present at the beginning of every court session to enquire as to whether he waives his presence.
  • Affirming the proper extent of the subpoena power able to be exercised in relation to the commissions.
  • Revisiting the structure and role of the U.S. Court of Military Commission Review.
  • Vesting jurisdiction for litigation over conditions of confinement with the U.S. District Court for the District of Columbia as an issue properly lying in habeas rather than continuing the current practice of commissions litigating detention commissions at nearly every session as it arguably relates to the ability of the accused to participate in his defense.

Pearlman says lengthy delays have exposed the need to make statutory reforms to achieve justice for the victims and the accused, and ultimately restore confidence in this “important age-old war power.”

“Although some unforced errors like those addressed in the D.C. Circuit’s al-Nashiri decision [last week] need to be addressed by other means, modest statutory reforms can remedy a few key issues delaying resolution to some of the most significant trials of this conflict,” he said.

GITMO Diary: Follow Proceedings for Khalid Shaikh Mohammad and Other 9/11 Defendants

author avatar
Kristina Tanasichuk
From terrorism to the homeland security business enterprise, for over 20 years Kristina Tanasichuk has devoted her career to educating and informing the homeland community to build avenues for collaboration, information sharing, and resilience. She has worked in homeland security since 2002 and has founded and grown some of the most renowned organizations in the field. Prior to homeland she worked on critical infrastructure for Congress and for municipal governments in the energy sector and public works. She has 25 years of lobbying and advocacy experience on Capitol Hill on behalf of non- profit associations, government clients, and coalitions. In 2011, she founded the Government & Services Technology Coalition, a non-profit member organization devoted to the missions of the U.S. Department of Homeland Security and all the homeland disciplines. GTSC focuses on developing and nurturing innovative small and mid-sized companies (up to $1 billion) working with the Federal government. GTSC’s mission is to increase collaboration, information exchange, and constructive problem solving around the most challenging homeland security issues facing the nation. She acquired Homeland Security Today (www.HSToday.us) in 2017 and has since grown readership to over one million hits per month and launched and expanded a webinar program to law enforcement across the US, Canada, and international partners. Tanasichuk is also the president and founder of Women in Homeland Security, a professional development organization for women in the field of homeland security. As a first generation Ukrainian, she was thrilled to join the Advisory Board of LABUkraine in 2017. The non-profit initiative builds computer labs for orphanages in Ukraine and in 2018 built the first computer lab near Lviv, Ukraine. At the start of Russia’s invasion of Ukraine, she worked with the organization to pivot and raise money for Ukrainian troop and civilian needs. She made several trips to Krakow, Poland to bring vital supplies like tourniquets and water filters to the front lines, and has since continued fundraising and purchasing drones, communications equipment, and vehicles for the war effort. Most recently she was named as the Lead Advisor to the First US-Ukraine Freedom Summit, a three-day conference and fundraiser to support the rehabilitation and reintegration of Ukrainian war veterans through sports and connection with U.S. veterans. She served as President and Executive Vice President on the Board of Directors for the InfraGard Nations Capital chapter, a public private partnership with the FBI to protect America’s critical infrastructure for over 8 years. Additionally, she served on the U.S. Coast Guard Board of Mutual Assistance and as a trustee for the U.S. Coast Guard Enlisted Memorial Foundation. She graduated from the Drug Enforcement Agency’s and the Federal Bureau of Investigation’s Citizens’ Academies, in addition to the Marine Corps Executive Forum. Prior to founding the Government Technology & Services Coalition she was Vice President of the Homeland Security & Defense Business Council (HSDBC), an organization for the largest corporations in the Federal homeland security market. She was responsible for thought leadership and programs, strategic partnerships, internal and external communications, marketing and public affairs. She managed the Council’s Executive Brief Series and strategic alliances, as well as the organization’s Thought Leadership Committee and Board of Advisors. Prior to this, she also founded and served for two years as executive director of the American Security Challenge, an event that awarded monetary and contractual awards in excess of $3.5 million to emerging security technology firms. She was also the event director for the largest homeland security conference and exposition in the country where she created and managed three Boards of Advisors representing physical and IT security, first responders, Federal, State and local law enforcement, and public health. She crafted the conference curriculum, evolved their government relations strategy, established all of the strategic partnerships, and managed communications and media relations. Tanasichuk began her career in homeland security shortly after September 11, 2001 while at the American Public Works Association. Her responsibilities built on her deep understanding of critical infrastructure issues and included homeland security and emergency management issues before Congress and the Administration on first responder issues, water, transportation, utility and public building security. Prior to that she worked on electric utility deregulation and domestic energy issues representing municipal governments and as professional staff for the Chairman of the U.S. House Committee on Energy & Commerce. Tanasichuk has also worked at the American Enterprise Institute, several Washington, D.C. associations representing both the public and private sectors, and the White House under President George H.W. Bush. Tanasichuk also speaks extensively representing small and mid-sized companies and discussing innovation and work in the Federal market at the IEEE Homeland Security Conference, AFCEA’s Homeland Security Conference and Homeland Security Course, ProCM.org, and the Security Industry Association’s ISC East and ACT-IAC small business committee. She has also been featured in CEO Magazine and in MorganFranklin’s www.VoicesonValue.com campaign. She is a graduate of St. Olaf College and earned her Master’s in Public Administration from George Mason University. She was honored by the mid-Atlantic INLETS Law Enforcement Training Board with the “Above and Beyond” award in both 2019 – for her support to the homeland security and first responder community for furthering public private partnerships, creating information sharing outlets, and facilitating platforms for strengthening communities – and 2024 – for her work supporting Ukraine in their defense against the Russian invasion. In 2016 she was selected as AFCEA International’s Industry Small Business Person of the Year, in 2015 received the U.S. Treasury, Office of Small Disadvantaged Business Utilization Excellence in Partnership award for “Moving Treasury’s Small Business Program Forward,” as a National Association of Woman Owned Businesses Distinguished Woman of the Year Finalist, nominated for “Friend of the Entrepreneur” by the Northern Virginia Technology Council, Military Spouse of the Year by the U.S. Coast Guard in 2011, and for a Heroines of Washington DC award in 2014. She is fluent in Ukrainian.
Kristina Tanasichuk
Kristina Tanasichuk
From terrorism to the homeland security business enterprise, for over 20 years Kristina Tanasichuk has devoted her career to educating and informing the homeland community to build avenues for collaboration, information sharing, and resilience. She has worked in homeland security since 2002 and has founded and grown some of the most renowned organizations in the field. Prior to homeland she worked on critical infrastructure for Congress and for municipal governments in the energy sector and public works. She has 25 years of lobbying and advocacy experience on Capitol Hill on behalf of non- profit associations, government clients, and coalitions. In 2011, she founded the Government & Services Technology Coalition, a non-profit member organization devoted to the missions of the U.S. Department of Homeland Security and all the homeland disciplines. GTSC focuses on developing and nurturing innovative small and mid-sized companies (up to $1 billion) working with the Federal government. GTSC’s mission is to increase collaboration, information exchange, and constructive problem solving around the most challenging homeland security issues facing the nation. She acquired Homeland Security Today (www.HSToday.us) in 2017 and has since grown readership to over one million hits per month and launched and expanded a webinar program to law enforcement across the US, Canada, and international partners. Tanasichuk is also the president and founder of Women in Homeland Security, a professional development organization for women in the field of homeland security. As a first generation Ukrainian, she was thrilled to join the Advisory Board of LABUkraine in 2017. The non-profit initiative builds computer labs for orphanages in Ukraine and in 2018 built the first computer lab near Lviv, Ukraine. At the start of Russia’s invasion of Ukraine, she worked with the organization to pivot and raise money for Ukrainian troop and civilian needs. She made several trips to Krakow, Poland to bring vital supplies like tourniquets and water filters to the front lines, and has since continued fundraising and purchasing drones, communications equipment, and vehicles for the war effort. Most recently she was named as the Lead Advisor to the First US-Ukraine Freedom Summit, a three-day conference and fundraiser to support the rehabilitation and reintegration of Ukrainian war veterans through sports and connection with U.S. veterans. She served as President and Executive Vice President on the Board of Directors for the InfraGard Nations Capital chapter, a public private partnership with the FBI to protect America’s critical infrastructure for over 8 years. Additionally, she served on the U.S. Coast Guard Board of Mutual Assistance and as a trustee for the U.S. Coast Guard Enlisted Memorial Foundation. She graduated from the Drug Enforcement Agency’s and the Federal Bureau of Investigation’s Citizens’ Academies, in addition to the Marine Corps Executive Forum. Prior to founding the Government Technology & Services Coalition she was Vice President of the Homeland Security & Defense Business Council (HSDBC), an organization for the largest corporations in the Federal homeland security market. She was responsible for thought leadership and programs, strategic partnerships, internal and external communications, marketing and public affairs. She managed the Council’s Executive Brief Series and strategic alliances, as well as the organization’s Thought Leadership Committee and Board of Advisors. Prior to this, she also founded and served for two years as executive director of the American Security Challenge, an event that awarded monetary and contractual awards in excess of $3.5 million to emerging security technology firms. She was also the event director for the largest homeland security conference and exposition in the country where she created and managed three Boards of Advisors representing physical and IT security, first responders, Federal, State and local law enforcement, and public health. She crafted the conference curriculum, evolved their government relations strategy, established all of the strategic partnerships, and managed communications and media relations. Tanasichuk began her career in homeland security shortly after September 11, 2001 while at the American Public Works Association. Her responsibilities built on her deep understanding of critical infrastructure issues and included homeland security and emergency management issues before Congress and the Administration on first responder issues, water, transportation, utility and public building security. Prior to that she worked on electric utility deregulation and domestic energy issues representing municipal governments and as professional staff for the Chairman of the U.S. House Committee on Energy & Commerce. Tanasichuk has also worked at the American Enterprise Institute, several Washington, D.C. associations representing both the public and private sectors, and the White House under President George H.W. Bush. Tanasichuk also speaks extensively representing small and mid-sized companies and discussing innovation and work in the Federal market at the IEEE Homeland Security Conference, AFCEA’s Homeland Security Conference and Homeland Security Course, ProCM.org, and the Security Industry Association’s ISC East and ACT-IAC small business committee. She has also been featured in CEO Magazine and in MorganFranklin’s www.VoicesonValue.com campaign. She is a graduate of St. Olaf College and earned her Master’s in Public Administration from George Mason University. She was honored by the mid-Atlantic INLETS Law Enforcement Training Board with the “Above and Beyond” award in both 2019 – for her support to the homeland security and first responder community for furthering public private partnerships, creating information sharing outlets, and facilitating platforms for strengthening communities – and 2024 – for her work supporting Ukraine in their defense against the Russian invasion. In 2016 she was selected as AFCEA International’s Industry Small Business Person of the Year, in 2015 received the U.S. Treasury, Office of Small Disadvantaged Business Utilization Excellence in Partnership award for “Moving Treasury’s Small Business Program Forward,” as a National Association of Woman Owned Businesses Distinguished Woman of the Year Finalist, nominated for “Friend of the Entrepreneur” by the Northern Virginia Technology Council, Military Spouse of the Year by the U.S. Coast Guard in 2011, and for a Heroines of Washington DC award in 2014. She is fluent in Ukrainian.

Related Articles

- Advertisement -

Latest Articles