2/21 Motions Hearing #5: Hazarding a Vessel, and Perfidy, and Death

Debated now: AE176, a defense motion to knock out the capital referral of Hazarding a Vessel and Perfidy charges against the accused.

Those simply are categorically less deserving of punishment by death, says Al-Nashiri lawyer CDR Brian Mizer, than the offense of premeditated murder.  Mizer mentions some precedent, which has required substantial participation in the killing of another person to sustain a death sentence.   The court wonders about a remedy: he’ll instruct the members, come time, about the maximum possible penalty, under all convicted offenses.  So if there’s a death-eligible offense in there---again assuming conviction---what does it matter if Hazarding and Perfidy aren’t death-eligible, as the defense claims?  Mizer says he wants an instruction to members, one calling for active, substantial participation, and a reckless indifference to human life, in circumstances causing death.  Again, not every homicide is deserving of the death penalty, Mizer argues; only the most serious and deserving of murders count, under Supreme Court rulings.  The instructions should make that clear.

Justin Sher argues in rebuttal, challenging the defense on two fronts.  First, he doesn’t think capital punishment is per se excessive, for Hazarding and Perfidy.  Both are serious war crimes, and Congress thinks death is an option, when such crimes result in death. Interestingly, Hazarding and causing death will make a defendant death eligible in civilian court, argues Sher.  And the elements at issue there are roughly the same as those here.  Ditto the Uniform Code of Military Justice; the Court of Appeals for the Armed Forces has recognized that willfully hazarding a boat can be referred capital, when victims die.  As for perfidy, it “changes war for the worse.”  The Cole attack lead to the deaths of U.S. servicemen.  Congress thus reasonably concluded that Perfidy can be punished capitally, under those circumstances.

At any rate, there isn’t a per se imposition of capital punishment for either offense challenged here.  At trial, the prosecution will have to prove, among other things, the deaths that resulted from the crimes, as well as the accused’s substantial participation and moral guilt.  And there's good reason to think the government will succeed in this respect; after all, the accused acquired equipment, helped to plan, and trained people, among other things, according to Sher.  He sits.

Another word or two follow from Mizer. It isn’t enough to say that Hazarding is still made a capital crime under the UCMJ; that principle’s vitality would be well open to challenge today, under Eighth Amendment grounds.  We know, for example, that death is no longer authorized for rape under the Supreme Court's Coker ruling---despite the punishment’s nominal availability on the books in some jurisdictions.