JUSTICE IN AMERICA

 

CLASS WRITING EXERCISE

 

You will need your copy of the and the Department of Defense Order No. 1 establishing the detailed rules for conduct of Military Tribunals, the Military Commission Instructions I handed out in Class and a copy of the case I distributed by email for study-It is also posted on the Website as is the URL where you can find the Military Commission Instruction, if you did not attend classes in which they were handed out.  Send your answers in Microsoft Word format to stil9285@charter.net OR write your answers in PEN in a Blue Examination Book.

 

 

1.                The introductory section of DOD #1 refers to Article II, Sec. 2 of the U.S. Constitution, the relevant part of which is “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual service of the United States….”

 

Read Section 10 of DOD #1 on p. 15 of the Order #1.

What issues under the second sentence would you want to discuss with your civilian (Texas) lawyer?  When you receive your “Detailed Counsel” under Paragraph C. (2) of the Order (located on p. 4), what issues would you want to discuss with him, or her?  Can you foresee a possibility of conflict between your civilian lawyer and your Detailed Counsel?  If so, what do you think the most important conflict issues and why?

 

2.                After consultation with your lawyers, your Detailed Defense Counsel reports that you have been formally charged with treason and with conspiracy to commit acts of terror against the United States, and that you will be tried by Military Tribunal.  The  evidence against you is a videotape of your interrogation, which you do not recall because of your delirious state, but during which you appear to admit to two interrogators in U.S. Army uniforms that you sent messages specifically to persons named as being among the hijackers of the aircraft used in the September 11 attacks.  Both your civilian defense counsel and your Detailed Counsel agree that the elements that must be proved for you to be found guilty by the Tribunal are:

A.                          Treason

1.                Two witnesses to the same overt act must testify that you “levied war” against the United States; or

2.                You “adhered to its enemies, giving them aid and comfort; or

3.                You have confessed to either of the acts of 1 or 2 above, in “open court.”

 

B.                          Conspiracy

1.                Some testimonial evidence and some documentary evidence that you committed an “act of terror” against the U. S.

2.                Some testimonial or documentary evidence indicating that you took an overt act in furtherance of the conspiracy.

 

You ask your Texas civilian lawyer to file a writ of habeas corpus seeking your release from detention with non-citizens on the grounds that you are a U.S. Citizen, not subject to military tribunals and cannot be tried except in a U.S. Court.  Under Texas law, which is similar to federal law, before indictment, a writ of habeas corpus may be sought by any person whose liberty has been restrained, and is issued to show why the person is being detained or why the person should not be released.  Write a short essay showing all the reasons you can think of why the Military Tribunal Order should not apply to you.  The Detailed Counsel says he cannot file such a writ on your behalf in the Federal Courts, because he believes you gave up your right to claim being a citizen when you joined an armed group which was fighting the U.S. and besides, you have dual citizenship in two other countries which makes you eligible to be considered as a non-citizen, if the President wants to do so.   Finally, he believes you are likely to be convicted on the basis of the videotape.   Include in your essay all the reasons why you think he is wrong, including why you are not guilty of the charges and what evidence you think cannot be used against you.

 

          3.  Your Lawyer has also reviewed the Military Commission Instruction and gives you a copy to read.  Based on the definition of the Crime of Terroism (Paragraph 18, beginning on p. 10 of the Instructions), what arguments would you make to your lawyer to convince him/her that you are not guilty of that crime or conspiracy to commit it?