On 3 May 2018, the last item on the docket in the 9/11 case at Guantanamo was a defense motion to dismiss because of prejudicial comments President Donald Trump had made about military justice and the defendants. Whereas the proceedings in this military commission case typically showcase the frictions between the prosecution and the defense, when it came to this matter there was a moment of “peace breaking out”—a phrase actors here invoke in the rare instances when the adversaries agree. What they agreed was that Trump had made unprecedented (or as Trump might say “unpresidented”) and inappropriate statements that could taint the opinions of military officers who might be called to serve as jurors.
David Nevin, lead defense counsel for Khalid Sheikh Mohammad, had filed a motion to dismiss on the grounds of unlawful command influence; UCI is a military legal concept that occurs when a person bearing “the mantle of command authority” pressures—or even appears to pressure—military judicial proceedings. As president and commander-in-chief, what Trump says about a military legal proceeding carries weight and has consequences, unlike the volumes of silly, misinformed and irrelevant comments he made when he was a private citizen.
One of the examples that Nevin cited was Trump’s comments on 1 November 2017, the day after the truck attack in New York City by Uzbek national Sayfullo Saipov that killed eight people. (Keep in mind that at the time of Trump’s comments, Saipov had been arrested but not yet charged.) When Trump was asked by reporters whether Saipov should be sent to Guantanamo, he said yes. He elaborated, “We have to get much tougher. We have to get much smarter. And we have to get much less politically correct.” While that might not have indicated UCI, what he said next arguably was:
We also have to come up with punishment that’s far quicker and far greater than the punishment these animals are getting right now. They’ll go through court for years. And at the end, they’ll be—who knows what happens. We need quick justice and we need strong justice—much quicker and much stronger than we have right now. Because what we have right now is a joke and it’s a laughingstock.
Nevin also cited the harsh comments Trump tweeted about the military judge’s sentence in the court-martial of Army Sargent Bowe Berghdal: “The decision on Sergeant Bergdahl is a complete and total disgrace to our Country and to our Military.” Putting Trump’s comments in a larger context, Nevin said, “With respect to any case, I don’t think leaders should make statements about a desired outcome or prejudge guilt.” Would Trump’s comments have an effect on this case? Nevin noted that although potential jurors could be asked about whether Trump’s comments had influenced them during voir dire (jury selection), “it’s very hard to unring a bell like this one.”
Nevin closed out his argument by saying that the president’s remarks, as documented in the motion (which is not yet public), meet the legal definition of UCI and thus warrant a dismissal. But even if the judge, Col. James Pohl, decides not to dismiss the case, he should take the death penalty off the table.
James Harrington, lead defense counsel for Ramzi bin al-Shibh, seemed skeptical that Judge Pohl would dismiss on these grounds. “But,” he added,
... when you write a decision on this motion…, I think it would be helpful for you to make a comment about the potential effect of what people like the President of the United States can have in the future on these commissions so that there's a shot across the bow, so that maybe some of these things stop happening. I'm not saying that he will listen…We all know that he operates to the beat of his own drummer.
It was at that point that peace really broke out. Judge Pohl asked the prosecutor responding to the motion, Robert Swann, if he thought Trump’s comments were appropriate, and Swann said, “No, your honor, I do not…It is not permissible, and it should not be made.” Swann added that Barack Obama and Eric Holder had also made inappropriate comments in regard to the military commissions. Judge Pohl, expressing agreement, said that if a convening authority of the commissions made similar comments, he would be disqualified. Then Swann added: “How do we stop it, sir? That is the question.” Judge Pohl got animated: “Oh, I got ways to stop it… I don't mean to be flippant…, but I am not left without remedies…[W]ith all due respect to the Commander in Chief, if he wants to interject himself into this process by making these kind of comments, it's my job to make sure that the process is still fair.” Swann said something to the effect that no on pays attention to what Trump says, and he only pays attention when they appear in a motion like this one.
Swann’s argument against dismissal emphasized that this is the largest murder trial in US history. Some ill-considered and prejudicial comments by the president can be sorted out during jury selection and should not be the basis for taking the death penalty off the table. Judge Pohl took one more rhetorical swing at Trump for “interjecting himself” into an ongoing legal process.
Nevin got the last word because it was his motion.
[I]f you read the social science research where jurors in capital cases have been interviewed, what you find is that frequently, these decisions boiled down to ineffable moments within a trial or within the consciousness of the person making the decision. It isn't a simple weighing process. It is hard to say what moves a person from this column to that column. [T]his is why I think it's so important that proceedings like this one be as impeccable as they can be.
Who says Trump cannot be a unifying force? For the duration of one briefly argued motion, Trump unified the participants in the military commission case against his extremist and ignorant commentary.