2/21 Motions Hearing #2: Death For Certain Offenses

Let’s push on to AE177, another Ex Post Facto motion.  This time around, Mizer and company ask Judge Pohl to take the death penalty off the table, so far as concerns the offense of “intentional murder or conduct evincing a wanton disregard for human life.”  Again, the lawyer emphasizes the 2002 Courts Martial rules.  At the time, these allowed a maximum penalty of life without parole for such crimes.  It's roughly the same play as before: the Military Commissions Act, in Mizer’s view, thus jacked up punishment for Al-Nashiri’s crimes after the fact, all of his allegedly criminal actions having occured between 1998 and 2002.

The relevant commission rules derive in part from Geneva Convention principles, says Al-Nashiri's attorney.  And the latter tightly regulates the imposition of death as a punishment, restricting it to espionage and a few other offenses.  But "intentional murder" isn't on that list.   The court interrupts: are you saying courts martial can’t impose death, either?  No, says Mizer.  His position is that Courts Martial authority is cabined by American Eighth Amendment jurisprudence, as well as Ex Post Facto principles.  Here, we’re concerned chiefly with the latter.  On that point Mizer emphasizes that, under Courts Martial,  in 2002 death was not available as a punishment for murder that was not premeditated; or for felony murder. And by adding death as an option for more murder offenses, afterwards, the Military Commissions Act inarguably increased punishment---and ran afoul of the federal Ex Post Facto clause.

The prosecutor Maj. Evan Seamone: if, in 2002, a death sentence was theoretically available for the offenses challenged; and if it is still available now; then there’s no Ex Post Facto problem.  That's exactly the situation here, judge. Domestic and international law always have allowed commissions to impose death as a punishment for serious war crimes causing death.  Starting with the latter, take a look at Geneva III.  Its commentary makes clear that the treaty doesn’t abolish the death penalty, or significantly cabin its application by member states.  Thus, even as far back as 1949, capital punishment has been available, when an accused commits a war crime and causes the death of one or persons.  Customary international law is along similar lines, Seamone says, and incorporated in longstanding principles of American military law.

The important thing, Mizer argues in reply, is this: Article 18 of the Uniform Code of Military Justice, which provide Courts Martial with law of war jurisdiction.  Its provisions are clear.  The government interprets them as allowing for a “death is default" approach, whereby the ultimate penalty is in play whenever an offense is “serious."  But a simple label, however, doesn’t get the prosecution over the Ex Post Facto Clause.  Well, we haven’t yet seen death imposed for perfidy, or for hazarding a vessel, when victims have been killed; we haven’t seen death imposed for the offenses at issue in this motion, either.  There needs to be consensus about a penalty’s availability in the international community, before the government can proceed.  Seamone mentioned Geneva.  But international law didn’t stop in 1949, and still we have yet to see capital charges brought for the offenses described in Al-Nashiri’s charge sheet.  No surprise there, argues Mizer: a non-premeditated murder is categorically different than a murder, in which an accused is substantially involved, and the law recognizes the distinction.  The government must too, as it seeks to prosecute Al-Nashiri. Mizer finishes, and the motion is submitted.