4/23 Motions Hearing #1: More Arguments Against Capital Punishment

Picking up on the tail end of Tuesday's arguments on capital punishment, the prosecutor CDR Andrea Lockhart says that the government is ready to argue AE212, a defense motion seeking to strike the prosecution's intent to seek the death penalty against Al-Nashiri. Major Allison Danels begins by distinguishing this argument from her position the previous day: Even if the court finds that Congress could empower the Secretary of Defense to promulgate the aggravating factors necessary to impose the death penalty, most of those factors did not exist in R.C.M. 1004 at the time of the offenses alleged in this case. To apply those aggravating factors to Al-Nashiri, says Maj. Danels, would be to increase his punishment after the commission of the offense in violation of the Ex Post Facto Clause. In fact, just one of the five aggravating factors in the government's notice of intent to seek the death penalty applied at the time of the alleged offense---that is, the offense was committed in such a way or under such circumstances that the life of one or more persons other than the victim was unlawfully or substantially endangered. Representing the prosecution for this motion is Maj. Evan Seamone, who builds on co-counsel Justin Sher's argument from the previous day: The military commissions are a "self-contained system" in which the elements of certain particularly grave law of war violations are enough, in and of themselves, to authorize the death penalty. The factors promulgated by Congress and the Secretary of Defense represent a further narrowing of the the applicability of the death penalty, not, as the defense claims, aggravating factors that increase Al-Nashiri's potential punishment. Maj. Seamone further asserts, after some prodding by Judge Pohl, that the four contested aggravating factors in this case did exist in the military justice system at the time of the alleged offenses, albeit in slightly different forms that are encompassed by the military commission rules. However, even if they did not exist, because the defense does not contest one of the five aggravating factors, and that factor alone would authorize the death penalty, consideration of the other four factors could not increase the punishment and so does not run afoul of the Ex Post Facto Clause. This is true, says Maj. Seamone, even if ultimately that uncontested factor is not proven beyond a reasonable doubt, while one of the contested factors is so proven. In rebuttal, Maj. Danels rejects the prosecutor's claims that the relevant factors in this case in any way represent a narrowing exercise by Congress. She notes that if one follows the prosecutor's logic, any prosecution at Guantanamo before the military commissions for an act that results in death is eligible for the death penalty. Rather than narrowing the availability of the death penalty, the factors enumerated by the Secretary of Defense broaden what the jury may consider in determining whether to apply the death penalty. Any factor that the jury may consider in a death penalty determination that did not exist at the time of the alleged offenses violates the Ex Post Facto Clause. A brief counter by Maj. Seamone brings us to the end of the first motion of the day.