2/21 Motions Session #7: AE180, Part Two

Before lunch, we were discussing the lack of narrowing provided by Rule for Military Commission 1004.  According to Al-Nashiri’s attorney, Richard Kammen, the rule broadens the availability of capital punishment.  But the law insists instead upon the narrowing of that possibility.  The unconstitutional defect---as the defense explains in motion AE180---requires the dismissal of capital charges in this case.

Judge Pohl asks about evidence of aggravation, which the prosecution plans to offer.  That still won’t suffice, given the lack of narrowing; as Kammen explains, the idea of death penalty law is “guided discretion,” whereby the panel can make an informed moral judgment. But that’s impossible given the background rules, whatever proof the prosecution may present.  He proceeds along similar lines, each time returning to the leitmotif: broadening is unlawful, and countenanced by the commission’s procedures.

But Justin Sher says there is narrowing, and indeed, two times over in a commission case---once at the penalty phase, and then again at sentencing.  The members don’t touch on the 1004 aggravating factors until after finding the accused guilty beyond a reasonable doubt of this or that offense.  And it gives Sher precisely zero pause, that the Military Commissions Act makes all homicide crimes death eligible; again, the panel gets to winnow down from the maximum penalty in each case, both by deciding guilt and afterwards by deciding punishment, through application of various factors. He adds that the legislature has done some narrowing too, in the Military Commissions Act, by taking not-death-eligible homicides off the table to begin with.  Some more back and forth follows along these lines, and Sher concludes.

Kammen stands to reply.  Again: every crime that involves a person's death in military commission, because of the aggravators and other things, conceivably may lead to the detainee's execution.   death.  That’s very much different than civilian courts and courts martial.  Sher’s effort to suggest narrowing thus strikes Kammen as arbitrary; at least some offenses here, if charged elsewhere, wouldn’t theoretically give rise to a death sentence.  Really, the penalty structure isn’t about the crimes charged.  Instead it has to do, in Kammen’s view, with the identity of the accused; citizens don’t end up in military commissions, after all.  He hammers home is core point: not every defendant in the jurisdiction can face death, under law.  But that's precisely what's going on here.