Military Commissions

2/21 Motions Hearing #9: Aggravating

By Wells Bennett
Friday, February 21, 2014, 4:33 PM

So what’s next?  A six-strong battery of defense attacks to various “aggravators”---allegations that, if endorsed by the panel after conviction, would call for a vastly greater measure of moral culpability, and thus make Al-Nashiri more likely to receive the ultimate punishment.  (RMC 1004(c) sets forth so-called “aggravating factors” for capital cases, at least one of which must be found by a military panel before they impose a death sentence; additionally, another rule, RMC 1001, permits prosecutors to admit aggravating evidence after any commission conviction, capital or no.)  A properly instructed jury, as Learned Counsel Rick Kammen explains, must be told that each individual can decide not to impose death as a moral matter.  But you don’t get that sort of appropriate tailoring from the aggravators described in the rules, and here challenged by the defense.

Take AE191, a defense motion to strike a the sixth of the prosecution’s aggravation claims---namely, that Al-Nashiri has engaged in a continuing pattern of violence.  Kammen reasons that such a pattern is essential to warfighting, and also essential to prosecuting his client before this military commission. Ditto the other aggravators described in motions AE192 through AE196; with each, prosecutors have sought to make Al-Nashiri’s death more likely, simply by re-alleging that he engaged in conduct inherent in armed conflict. Consider aggravator #5, which purports to expose Al-Nashiri to greater punishment than other accused, because Al-Nashiri allegedly “creat[ed] a risk to the national security of an adversary.”  Well, you can’t have it both ways, Kammen argues.  In a war, Al-Nashiri gets to behave like a warrior; he doesn’t simply lose that status because some isolated conduct subjects him to trial.

No so, the government rejoins.  “What’s proper in war,” argues prosecutor Justin Sher, is “following the rules.”  He proceeds on this theme for a spell, before Judge Pohl interrupts and asks whether the members have to find these aggravators by a reasonable doubt;  Sher isn’t certain.  At any rate, though, his counterargument is this: under 1004(c) and 1001, the members may consider any stuff that is unique to Al-Nashiri. (This echoes the prosecution’s pleading. It claims that case law squarely contradicts Kammen’s position; and that the aggravators alleged do not in fact duplicate jurisdictional or substantive requirements in the Military Commissions Act.)

Kammen returns, and manages at once to summarize and lambaste the government’s rebuttal.  As he understands Sher, the prosecution’s approach boils down to “have the jury just weigh all the evidence---both aggravators described by statute and any other evidence prosecutors can dig up---and see what penalty results.”  Well, that is a clear violation of the Supreme Court's ruling in Stringer v. Black, argues Kammen.  Aggravating factors must be specifically defined in law, and not at all vague.  And yet Sher’s argument suggested a put-it-all-in-there-and-see-what-comes-out sort of process; that much is clear from his reliance on RMC 1001, and its language about “evidence” of aggravation.

Hold on, says Judge Pohl: aren’t aggravating factors limited, under RMC 1004(c)?  So long as the prosecution puts on evidence relating to those, then Kammen’s problem scenario simply won’t come to light.  Fine, says the defense lawyer, but such evidence must be narrowly tailored; and again, in his view, Sher and company apparently plan to sweep quite broadly.   This last bit is apparently illuminating for Judge Pohl.  He says he draws a distinction, between determining which kinds of aggravation evidence are admissible, on the one hand; and which sorts of aggravating factors lawfully may be lawfully alleged in a military commission, on the other. Court and counsel push a bit further on this, before Kammen circles back: the aggravators here are unlawful, and must be struck.  Granting of the defense’s motion would also dispose of any factors-versus-evidence problem---but, Kammen says, we can address any residual problems down the line to the extent necessary.  The lawyer’s final words comprise a broadside against commissions rules: the animating idea behind them he says, was to create a “death factory.”  The goal was not fairness, but a result antithetical to modern Eighth Amendment jurisprudence.  

A modest surreply follows.  According to Sher, RMC 1001 entitles his side to present aggravating evidence, provided his side gives notice to the defense.  The prosecution has supplied that.  Judge Pohl stops him: does Sher agree that 1004(c) comprises the complete list of factors, which may be supported by evidence under Rule 1001?  The prosecutor seemingly agrees.  The court: there are no “catch-all,” non-statutory aggravators?  Right, Sher says, and sits.