4/22 Session #5: Lots of Reasons Not to Impose the Death Penalty

The afternoon pushes on, to AE209---the first in a series of motions seeking to take death off the table as a punishment option.

In AE209, the Defense seeks to have the death penalty tossed out, because the Convening Authority, in referring the case, did not refer to aggravating factors set forth at RMC 1004. Under law, a defendant cannot be punished with death simply by virtue of a murder conviction, argues Maj. Alison Daniels; but the Military Commissions Act doesn’t call for such distinction, other than to require that death result from a capital-referred offense.  To be sure, aggravating factors are set forth in regulations and the military commissions manual; but even assuming that the executive branch can promulgate these, the Convening Authority must refer to them in making a capital referral---or else the death punishment has to go.  Yet here, there’s no indication that the Convening Authority took aggravation into account at all.  (The court squints at the defense’s suggestion that aggravators must be set by statute; Daniels clarifies that the needed aggravators can be established by the Defense Department unilaterally, provided the authority is properly delegated from Congress.)

The government, in the person of Lt. Bryan Davis, insists that the rules for capital referral were followed---by trial counsel and by the Convening Authority. The latter’s legal advisor examined the relevant factors under the Military Commissions Act, put aggravating information before the Convening Authority, and the Convening Authority made a lawful determination based on the totality of evidence.  The defense’s attack on this process makes a great deal out of very little: what matters under Supreme Court precedent (cited by the defense) is that the jury ultimately decides on any aggravating factors, before imposing the ultimate penalty.  And that’s precisely what will happen here.  He adds that the Fifth Amendment grand jury right does not attach in military commissions; but that the accused here has benefited from a grand jury-like process, as set forth under the MCA.  When asked, Davis says that he thinks the Convening Authority took the legal advisor’s own aggravation analysis into account.  Davis winds up.

Now returns Daniels: every federal court has held that a capital indictment must charge statutory aggravators, and be approved by a grand jury, she says.  Here, by not citing any aggravators, the Convening Authority failed in his duty to refer the case on the basis of probable cause.  We wouldn’t have that problem in a civilian grand jury.  The law is clear: you gotta have the aggravators in there, given that the jury will have to find each beyond a reasonable doubt.  So strike out the death penalty, Daniels asks.   Thus AE209 is submitted.

On to AE210, where the defense challenges the MCA as overbroad: in particular, Daniels and company say it unlawfully fails to narrow the class of people who can be killed by the state, after lawful trial and conviction. In short, the MCA permits anyone to be executed, provided that he or she commits a crime that results in death. Again the court takes Daniels here to be saying that statutory aggravators must be included in the statute; the defense attorney doesn’t go quite that far, but says that the law nevertheless is infirm, given Congress’s failure to prescribe “constraints” on the death penalty’s imposition.  (She also refers to the delegation issue, which court and counsel batted around during argument on the prior motion: the Secretary of Defense’s power to promulgate a capital sentencing regime is doubtful.)

Return serve to the prosecution, and in particular, to civilian prosecutor Justin Sher.  He says Congress did include statutory aggravating factors, in a scheme previously approved by the Supreme Court.  He reads the key ruling aloud, afterwards noting that here, Congress built narrowing attributes into the commissions crimes themselves.  For the homicides here all involve particular conduct by an alien unprivileged belligerent, committed in and associated with hostilities.  Thus Congress made clear that, no, not just anybody can be put to death for committing murder in this forum; instead it made clear that only a fraction of commission accused can be executed after trial.  The Secretary of Defense, he adds when asked, has further limited the class of death-eligible persons, by promulgating an aggravation regime.  (As for the latter, Sher says Congress properly delegated promulgation authority to the Secretary.)  Which is to say: narrowing, check; aggravation, check.  And there’s nothing to suggest, as the defense has claimed, that delegations can’t be made to the Secretary of Defense by Congress, so far as aggravation goes.

Sher has that last part entirely wrong, argues Daniels in reply.  In particular, the Supreme Court cases here have blessed delegation authority---to the president only, not to any cabinet officials. And Sher’s also wrong about as to narrowing, too: only people hypothetically within the MCA’s jurisdictional language can be brought to Guantanamo in the first place.  So the potentially triable class is as broad as the detainee population---no narrowing there, in other words.  That’s another good reason to find an Eighth Amendment problem, and to knock out the capital referral.  AE210 thus winds up; and likewise, after exceedingly brief argument, AE211---an overlapping motion which largely repeats the defense’s delegation arguments from AE210.  (In short, Daniels contends that the Secretary’s authority to promulgate regulations is unbounded, and contravenes the separation of powers.)