2/21 Motions Hearing #6: AE180, Part One

AE180 is our motion.  Richard Kammen presents it on Al-Nashiri’s behalf.  The gist: the charges in this case shouldn’t have been referred capital, because the Military Commissions Act’s sentencing scheme offends the Eighth Amendment and other authorities. This system is “fundamentally flawed,” says the detainee’s Learned Counsel, for it imposes punishments that are “cruel and unusual.”

Elaborating, Kammen employs visual aids.  The defense lawyer understands the Constitution as mandating a sort of pyramid structure, which we see displayed on the grainy Fort Meade screen.  At the polygon’s broad bottom is a seemingly big number, of all violent deaths in a jurisdiction; at the top we find a much smaller number, of cases where death was imposed for capital homicide, and an appellate court affirmed the punishment.

The idea is plain enough: the law insists upon a constant and stringent narrowing, both of death-eligible crimes and aggravators supporting death for those crimes. But we don’t get that in commissions, Kammen claims; to the contrary, commissions take a vastly broader view of both offense eligibility and aggravation---the latter being the subject of AE180.  Wait, says Judge Pohl: Congress has to allow for at least some non-capital homicides in the Military Commissions Act, in order to pass muster?  Yup, answers Kammen, but there are only capital homicides in play these days. The court and counsel talk about this for some time, mostly to clarify Kammen’s position.  In his view, Guantanamo aggravators are so broad, that death is a realistic sentencing option in almost every homicide case. We’ll break now for lunch.