By Benjamin G Davis, Associate Professor of Law, University of Toledo College of Law
(Update 10/18 – app wrote a out the Ehren Watada court martial below. Today met the military judge who had heard that case. Also, next building over was a motions hearing in the Private Manning case. Watchers a little when there was a break in the 9/11 case. Finally, met one of the plaintiffs in the Hedges NDAA case that is in the Second Circuit. It is dismaying that in a theater that could 2-300 people there were only ten or so of us. There are great lawyers and students from all the law schools, Capitol Hill politicians who have been so vocal about the commissions are missing at the switch.)
Arrived near Fort Meade yesterday to watch on close circuit television the 9/11 military commission going on all this week. Over dinner and at the hotel read the live blog of what happened since Monday that is done over at lawfareblog.com, a site that never accepts my guest posts.
These motion hearing battles over the rules to apply are significant because the series of rulings will shape the advocacy space. Motion so far that struck me about presumptive classification appears to be setting up to what extent the public will get to hear about the torture as opposed to have this and other aspects of the process be held in secret without public or press access.
ACLU argument goes right at the Bush era notion that detainees statements on their treatment should be kept secret in the proceedings from the public and the press. The whole world is watching to see how that one goes.
Another thing came to mind thinking back to the denouement of the Ehren Watada court martial for refusing a troop movement to Iraq was declared a mistrial after the military jury had been empaneled. Subsequently, a federal judge barred retrial under a right against double jeopardy. That got me wondering when double jeopardy attaches in the military commission setting? Not sure, but I think this issue may later become important.