2/21 Motions Hearing #8: On Grand Juries and Global Norms

Here is Air Force Maj. Allison Daniels, presenting AE183. Her motion seizes on the lack of grand jury indictment in this capital military commission case.  That’s contrary to the Eighth Amendment, in the defense’s view.

The charges here were the product of a single individual’s discretion.  Well, that’s not good enough for the grand jury.  Structurally, it is the law's sole protection against vindictive, politically motivated justice, argues Daniels. There’s an analog to the grand jury in the military system, of course: investigation under Article 32.  But there’s no analog down here at Guantanamo.  Thus she asks Judge Pohl to invalidate the capital referral.

No, don’t do that, argues Lt. Bryan Davis.  The prosecutor notes the directly contrary authority confronting the defense: Quirin.  The infamous case takes grand jury rights off the table, entirely, so far as concerns the Fifth and Sixth Amendments.  Sure, Quirin isn’t an Eighth Amendment case; but why would the punishments amendment also contain an implicit grand jury requirement, given the subject's explicit treatment elsewhere in the Bill of Rights?  No court has ever held this.  And small wonder: doing so would give detainees greater rights than American servicemembers.  Seemingly in the abundance of caution, Davis then swiftly ticks off the procedural protections for capital accused---indictment after Convening Authority review, conviction beyond a reasonable doubt, punishment according to aggravating and mitigating factors, and so on.  (The MCA, he adds, calls for more aggravation in capital cases, than federal courts do.)  The prosecutor ends where he began: this motion is resolved by Quirin, full stop.

On to our next item.  The death penalty is no longer “civilized” under international law, argues CDR Brian Mizer.  Thus, in AE185, Al-Nashiri's attorney also claims that imposing death for war crimes is also “cruel and unusual” under the Eighth Amendment.  The lawyer builds on this international-domestic two-step, first by briskly reviewing the relevant U.S. precedents: Roper, Atkins, and the like.  Wait, says Judge Pohl: capital punishment violates international law in all U.S. courts, for all crimes?  No, not always, answers Mizer; his motion is limited to war crimes.  He gestures to Hamdan II---which subjected commission jurisdiction to international laws of war---but ultimately rests on the domestic law standards of the Eighth Amendment.  The latter requires a general acceptance of death for war crimes, not just the absence of a prohibition against that. It happens that war criminals haven't been executed for half a century.  This suggests an increasingly rigorous legal test, one that inures to the benefit of Mizer’s client and prevents any capital prosecution from going forward.

Prosecutor Maj. Evan Seamone welcomes an opportunity to debate the state of international law---which just hasn’t ever proscribed death for war crimes. The Third Geneva Convention certainly countenances the ultimate penalty; ditto the Fourth.  And the subsequent protocols didn’t really change that status quo, either.  No, these instruments merely took away death sentences for particular classes of offenders.  When asked, Seamone dismisses the practices of international tribunals, which don’t allow for capital punishment.  Those are special bodies that deal with special circumstances, he says; the ICC, for example, doesn’t allow for death punishment---but also doesn’t disallow member states from imposing that penalty themselves.  Moreover, the ICRC has concluded as recently as 2004 that death is still in play, so far as concerns serious law of war violations.

Reply follows briefly.  During it, Mizer says he sees a growing, global consensus against execution.  And, he argues, United States courts consistently have looked to international norms in applying the Eighth Amendment.  We know where this trajectory is going, and it is time for Judge Pohl to codify the emerging trend in a judicial ruling in this case.  Mizer adds a few words more, and winds up.