Thursday, November 3, 2011

A Meaningful Acquittal?

Further to our coverage of the al-Nashiri case, one of the motions that may receive a hearing next week will be one submitted by defense counsel and poignantly entitled:



Motion for Appropriate Relief: To Determine if the Trial of This Case is One From Which the Defendant may be Meaningfully Acquitted.

(All filings available here). In essence, defense counsel seek a factual statement from the government as to what will happen should Al-Nashiri be acquitted. The presumption, of course, is that he will subject to continued preventative detention, perhaps for the rest of his life. The defense thus argues:



A trial, to be meaningful to society and the defendant, must hold the possibility of both punishment and reprieve for the accused.

In support of this statement, the motion quotes Justice and Nuremberg Prosecutor Robert Jackson in speech entitled "The Rule of Law Among Nations," delivered at an event organized by the American Society of International Law:



The ultimate principle is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict.

At issue is not only the defense's ability to advise their client, but also the ethical and moral qualms of potential commission members who might not want to be associated with a procedure whose outcome is so patently pre-ordained. The defense may also want the jury members to know that a vote to acquit would not necessarily result in the release of a potentially dangerous person. Preventative detention may actually be preferable to the defendant than a sentence following conviction in light of the fact that a change in policy (or even the end of hostilities in Afghanistan) might provide a basis for the defense to argue for al-Nashiri's release in the future.

The government, not surprisingly, has argued that the motion should be denied. The crux of the argument is that the jurisdiction of military commissions is limited to prosecuting individuals pursuant to the Military Commission Act; the commission is not authorized to rule on all aspects of detainees' lives or even to determine the propriety of law-of-war detention under the 2001 Authorization to Use Military Force. Indeed, the brief makes clear that



Should the accused be acquitted following a trial by military commission, the government could, as a legal matter, continue to detain the accused during hostilities pursuant to the AUMF it is establishes by a preponderance of the evidence that the accused was part of our substantially supported al Qaeda, the Taliban, or associated forces.

This determination, in turn, would be subject to review via habeas corpus.

If Nashiri will be held in detention regardless, then the only unknown variable is whether the commission will sentence the defendant to death. The fact that the government is pursuing capital charges will put the question of CIA torture squarely back in the public eye. Indeed, the government admits to waterboarding Nashiri. Other torture allegations include



  • threats to his family,

  • threats that he would be sodomized or shot in the head,

  • threats that his family members would be raped,

  • threats with power tools including a drill,

  • being pulled to standing with his arms behind his back,

  • having someone stand on his shackles, and

  • days of being shackled in stress positions, or being hooded and naked.
The CIA’s Inspector General Report and a confidential but leaked 2007 ICRC Report catalog that these so-called Enhanced Interrogation Techniques were employed against Nashiri in November and December 4, 2002.

Going forward with this case with this level of abuse is in stark contrast to the outcome of the case against Mohammed Al-Qahtani, a Saudi who was to be tried with the other 9/11 defendants. (See IntLawGrrl Diane Marie Amann's take on the case here). In that case, the presiding Convening Authority, Susan J. Crawford, determined that Al-Qahtani had been tortured by U.S. agents and so refused to refer charges against him at all. Crawford stated bluntly:



His treatment met the legal definition of torture. And that's why I did not refer the case.

This abuse is all exculpatory evidence, which may take the death penalty off the table for Nashiri. Or not...

The defendant's brief also hints that discussions of a plea may be occurring, especially if it is clear that the trial will not impact the outcome. As Diane Marie Amann noted earlier in connection with 2008 proceedings in the 9/11 defendants' case, it is not clear if the military commissions are permitted to pass a death sentence following a plea. The National Institute of Military Justice subsequently filed an amicus brief in the 9/11 case arguing that if an accused is convicted by guilty plea, a death sentence may not be adjudged. In particular, the Military Commission Act forbids the imposition of the death penalty unless the accused has been

convicted ... by the concurrence of all the members present at the time the vote is taken.

The former Manual for Military Commissions, by contrast, stated that

death remains an authorized sentence, notwithstanding the accused's plea of guilty.
The MCA, however, prevails over the Code in the event of such a conflict. Indeed, the revised Manual omitted this provision. All that said, the statute seems to allow the military judge to decline to enter a conviction based on a guilty plea. There may be prudential grounds to do so here.

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