11/5 Session #3: On the Necessity of the Death Penalty

The parties return for the afternoon session and Judge Spath begins by laying out his thinking on the previous motion seeking supervised telephone and Skype calls between Al-Nashiri and his family. In the interest of moving this issue forward, the judge would like to understand why a supervised and delayed-transmission telephone or Skype conversation between Al-Nashiri and his family is unacceptable to the government. While the burden rests with the defense team and the government must only demonstrate a rational basis for the decision, the commission would like to hear from a Guantanamo representative—Judge Spath proposes Admiral Kyle Cozad, the commander of Guantanamo—and the unidentified individual who informed Al-Nashiri that he would soon have access to telephone and Skype calls. This can either happen during this series of motion hearings or, if necessary, the next time the parties come down to Guantanamo. With that decided, Judge Spath moves on to AE 286B, a defense motion to withdraw the death penalty for lack of a military necessity. Up for the defense is Maj. Allison Danels, who begins by arguing that the military commissions, as courts of limited jurisdiction born of military necessity, must limit their punishments to those that are militarily necessary. The lapse in time between Al-Nashiri's capture and when the government brought charges against him—nine years—shows that there is no military need to execute the accused in this case. Judge Spath pushes back on the defense's assertion, repeatedly asking how he can take the death penalty off the table when the Military Commissions Act expressly provides that option to the commission. In light of the facts and circumstances of Al-Nashiri's case, explains Maj. Danels, there is no military necessity in this case, though the death penalty may be warranted for other cases. And what are those facts and circumstances? Maj. Danels points to William Wintrhop's four preconditions for exercise of military commission jurisdiction as laid out in Hamdan v. Rumsfeld: The conduct (1) must have occurred (2) within the theater of war (3) during the period of the war and (4) must be a violation appropriate for tribunals not legally tried in a court-martial. Further, the precondition that the offense charged occur within the period of the war implies that the charges must be brought swiftly after the accused is captured, as demonstrated in Ex parte Quirin, where the accused were executed less than a month after entering the US. Judge Spath isn't so sure that the Quirin model from 1942 is a particularly good one for this case; after all, much of the delay in bringing Al-Nashiri to a military commission was a result of all the challenges and modifications to the process to make it fair for defendants. And anyway, the Military Commissions Act doesn't include a statute of limitations for imposing the death penalty, which would seem to remove the swiftness argument. The very fact, responds Maj. Danels, that the government waited four years from Al-Nashiri's capture to create a military commissions system is evidence that there is no military necessity here. Finally, Maj. Danels challenges the government's justifications for the necessity of the death penalty in this case. Public safety cannot be the justification for executing Al-Nashiri because of the prospect that he could be indefinitely detained even if he is acquitted. Nor is a general deterrence argument convincing because, rather than dissuading terrorists, it might actually incite them and give them justification for their brutality. Another possible justification, vengeance, is not one that the US military uses and is not a military necessity. Lt. Paul Morris responds for the prosecution: Maj. Danels makes a number of points that the commission might find convincing for sentencing Al-Nashiri, but at this point in the proceedings, none of it amounts to a legal basis to take the death penalty off the table. Returning to Winthrop's preconditions, Lt. Morris points out that even Winthrop acknowledged that his military commission rules are subservient to statute. The Supreme Court in Hamdan acknowledged as much. Thus, the Military Commissions Act should govern in this case and the death penalty should not be removed from the case. Back on rebuttal, Maj. Danels argues that Winthrop's exception for statutory guidance only applied to statutes that existed at the time when the accused committed the offense. In Al-Nashiri's case, the Military Commissions Act was enacted four years after his capture and six years after the offense that he allegedly committed. But isn't it common for legislatures to statutorily authorize military commissions only after the war has started and often after the offense is committed? Judge Spath points to the Nuremberg tribunals to bolster his question. Does the defense have any authority that the passage of 14 years passes some sort of statute of limitations that removes the death penalty from appropriate punishment? Maj. Danels does not have a satisfactory answer for Judge Spath and the defense rests. The commission takes a brief break before the next motion.