Military Commissions

4/27 Session #2: Discrimination in Death

By Wells Bennett
Monday, April 28, 2014, 9:10 PM

We shuffle things around a bit, first by putting off AE263 temporarily.  It appears that motion, along with related litigation concerning hearsay statements offered by the prosecution, will be postponed until a later time closer to trial. That takes us to AE264, a constitutional challenge brought on the basis of equal protection principles grounded in the Fifth Amendment's due process clause. But the defense had advanced these arguments already, in a separate pleading invoking the Fourteenth Amendment's due process clause; the defense accordingly forgoes argument and rests on its briefs, and the government offers only the briefest of comment afterwards.

All this serves as prelude to AE265, the next item for argument and a defense motion to strike the death penalty, given the Military Commissions Act's deliberate, unlawful discrimination.  As Al-Nashiri's defense team has explained in its filing, the statute confers jurisdiction over (and thus, allows for the capital punishment of) only certain aliens---in practice almost entirely Muslims.  For that reason, says CDR Brian Mizer the law is contrary to the Eight Amendment.  He has in mind certain aggravating factors in the MCA, which, as he puts it, "impose the death penalty in an arbitrary, or ... wanton or freakish fashion."  The lawyer finds historical support for his position, noting (among other things) that the Supreme Court has started to look askance at the discriminatory application of the sentencing rules for powder and crack cocaine---and that that discrimination has fallen hardest on minorities.  Mizer lastly nods towards Quirin, pointing out that, for all its many faults, the World War Two-era decision approved the execution of foreign enemies as well as citizen enemies after trial by military commission--and in that regard frowned on discrimination along alienage lines.

Over to prosecutor Maj. Evan Seamone, who begins by noting the deferential legal standard in play---he calls this "rational basis"---and the congressionally-crafted safeguards that ensure the fairness of commission trials.  The court interrupts, wondering what this stuff has to do with the anti-discrimination principles cited by Mizer; the lawyer parries a bit, but comes quickly to the point: international law always has permitted death as a punishment for serious violations of the laws of war.  That, in turn, makes any would-be Eighth Amendment go away.  After some further back-and-forth, Seamone also notes that---unlike other courts---a commission can find the accused guilty, but impose no punishment at all.  So far from discriminating against aliens, it appears the commissions afford them---from a punitive standpoint---more favorable outcomes, on paper at least.  When asked, Seamone also tells the military judge that U.S. citizens can indeed face death, upon conviction for war crimes in federal courts: no bad discrimination here, either.  Nor in courts martial, where big-ticket violations likewise can result in a death sentence under similar circumstances.

All this rings hollow to Mizer, who intones: this isn't about whether citizens of the United States can be executed.  This, instead, is about a separate and less favorable trial system and sentencing scheme for a narrow class of aliens.  Consequently, he rejects Seamone's suggestion of "rational basis" review; rather, he's after a declaration that the statute does what it says it does, i.e. discriminate and arbitrarily impose the death penalty. Of course that conflicts with, among other things, the Supreme Court's Gregg v. Georgia and other cases.  Mizer sums up with another reference, this one to a separate but better known line of high court decisions: separate but equal isn't acceptable for our schools, he says; nor should it be for our justice system.

With that, AE265 is finished up and added to the military judge's inbox.  There's a quick pause, as court and counsel debate whether a witness to our next motion will be permitted to testify.  The defense says no, given that person's departure from Guantanamo, and the fact that, to the extent threats have been made, they have been made by persons other than Al-Nashiri against persons other than the witness.  But he prosecution says otherwise, insisting that the name's disclosure might expose the witness to risk wherever his duty station might be, that the danger for the witness is real, and that he (or she) might return to duty at the detention facility.  We await the issue's resolution as the court calls a brief recess.