A View From the CDC 1 March 2018 Brigadier General John G Baker, USMC Chief Defense Counsel for Military Commissions john.g.baker.mil@ mail.mil (571) 256-9780 (o) (757) 975-7493 (c)
Disclaimer • My Thoughts Only • Do Not Represent Any Individual Defendant • Not the position of the DoD, OMC, US Government
Mission Statement The Military Commissions Defense Organization provides ethical, zealous, independent client-based defense services under the Military Commission Act in order to defend the Rule of Law and maintain public confidence in the nation's commitment to equal justice under law.
MCDO Clientele • On Appeal (3) * Bahlul – 2008 Conviction, Remanded to CMCR in light of Circuit decisions * Khadr^ – 2010 Conviction (Guilty Plea), At CMCR, stayed awaiting Bahlul (despite Bahlul remand) * Qosi^ – 2010 Conviction (Guilty Plea), At CMCR, no action since unsuccessful July ‘17 fact-hearing ^ No longer confined • Awaiting CA Action (1) * Darbi – Pled G in ‘14, Sentenced in ‘17, CA should Act in ‘18, Currently held beyond terms of PTA • Pre-Sentencing (1) * Khan – Pled G in ‘14, was supposed to be sentenced ‘17, delayed until ‘19 • Pre-Trial (7) * Nashiri – Charged capitally in ‘11, Case indefinitely abated Feb ‘18, Gov’t appeal of abatement pending * Five (5) 9/11 Clients (Mohammed, Bin ‘Atash, Hawsawi, Bin al-Shibh, Al Baluchi) – Charged capitally in ‘12, pre-trial litigation on-going, no trial date, will not be in ‘18 * Hadi/Nashwan – Charged in ‘14, pre-trial litigation on-going, no trial date set, but MJ just issued detailed litigation schedule that suggests a spring/summer 2019 trial • Charges Sworn, Awaiting Disposition Decision (3) * Three (3) Malaysian Clients (Hambali, Zubair, Bin Lep) - CA is not funding the defense beyond GTMO travel. – Charged in ‘17, CA returned charges to OCP for an unknown reason, Awaiting Charges (6) •
Hot Button Issues • Manpower Challenges – CA has approved billets, but DoD won’t fill – No back-up for loss of Learned Counsel • Attorney-Client Meeting Locations – Concerns about Confidentiality • Update – CA just approved Inspection of “OMC Controlled Spaces” – Need larger attorney-client rooms at the ELC • Unexplained firing of CA and Legal Advisor • Ongoing tension between the Rule of Law & Protecting National Security – Particularly in capital cases • Spill Management and IT Support
Delays in Filling MCDO’s Approved GS Billets* As of 15 February 2018 109 110 100 93 90 80 70 60 50 46 40 35 31 29 28 30 27 24 21 17 17 20 14 12 9 8 10 0 Original Oct 12 Jun 14 Feb 15 Dec 15 Jun 16 Oct 16 Dec 17 Allowance Attorneys Paralegals Admin IT Lit Spt Inv DISO Analysts - Dates reflect CA approval of additional billets. * In addition to shortfalls in filled GS positions, the MCDO is projecting a 37% shortfall in military attorneys and a 25% shortfall in military paralegals during 2018.
Capital Case Challenges
Death is Different “When you have a capital case, you need to wake up every morning and remind yourself that the government is trying to kill your client.”
One Defense Team’s Travel for 2017 Total 2017 travel: 1825 days Travel Days Average Travel per FTE: 91.25 180 168 160 145 142 140 128 123 115 114 120 110 101 100 81 77 73 71 80 68 60 59 59 53 60 43 35 40 20 0 * Role was filled for less than full-time because of hiring, PCS, parental leave, or part-time status OCONUS CONUS GTMO Total ** Role was filled by two persons in 2017
One Defense Team’s Yearly Page Count Totals 12946 14000 12000 10000 5191 8000 6000 3033 2895 2575 2472 4000 2219 1787 1048 Total Page Count 867 2000 585 563 Drafted Page Count 0 2012 2013 2014 2015 2016 2017 Drafted Page Count Total Page Count
RDI Discovery as of 23 Feb 2018 6.2 million pages of RDI Discovery RDI Discovery Received - 17269* pages or .002785322581% of known RDI Discovery Prisoner Statements Medical Black Site Journals (5528) Records** Documents (4433) (1193) (6115) * For reference, 6600 pages had been provided as of 1 Dec 16 ** Medical Records pages are estimates only
Other Discovery Challenges
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