Aug. 13, 2008 — Duke University law professor Madeline Morris is scheduled to be an expert witness on Wednesday, Aug. 13, 2008, at the military commission pretrial motions hearing of Mohammed Jawad at Guantanamo Naval Base in Cuba. Morris will testify in support of motions to dismiss the charges against the Afghani detainee on jurisdictional grounds.
Morris directs Duke Law School’s Guantanamo Defense Clinic and has served as chief counsel to the Office of the Chief Defense Counsel for U.S. Military Commissions, U.S. Department of Defense, as well as consultant on the brief for the petitioners in Boumediene v. Bush, decided by the Supreme Court in June. An expert on international criminal law, the use of force in international law, and public international law, Morris is a member of the U.S. Secretary of State’s Advisory Committee on International Law.
Morris will testify that the charges sworn against Mr. Jawad, an Afghani accused of murder in violation of the law of war and attempted murder in violation of the law of war are void on the following jurisdictional grounds:
-the military commission lacks “subject matter” jurisdiction to hear charges against Mr. Jawad because the acts alleged in the charges against him do not constitute a "violation of the law of war.” This same legal issue led to the threat of a mistrial last week in the case of U.S. v. Salim Hamdan, and remains highly contested.
- the military commission lacks “personal jurisdiction” over Mr. Jawad because the charges sworn against him are jurisdictionally defective. The Military Commissions Act limits military commission jurisdiction to the prosecution of unlawful combatants, Morris explains. On that basis, she says, Mr. Jawad is, as a matter of law, a presumptively lawful combatant unless and until a contrary determination is reach by a “competent tribunal” as required by article 5 of the Geneva Conventions. No such tribunal has determined the combatant status of Mohammed Jawad. On this point, Morris will challenge the accuracy of statements made in a military-commission ruling in U.S. v. Salim Hamdan.
Read a related article by Professor Morris, "Taking Liberties: The Personal Jurisdiction of Military Commissions."