Military Commissions

8/5 Motions Hearing #1: Death Penalty Procedures and Mitigation Experts

By Lauren Bateman
Tuesday, August 5, 2014, 10:10 PM
The military judge, Air Force Col. Vance Spath, begins the morning's hearing in United States v. Al-Nashiri---his second on the case---by ruling on two pending motions.
First, Judge Spath grants defense motion AE 305, in which the detainee's lawyers had asked the new military judge to block his predecessor, Army Col. James L. Pohl from resolving certain outstanding motions after his replacement by Judge Spath. Here the court agreed with the defense that he should be the one to resolve legacy motions, with one caveat: Judge Spath plans to do so on the existing record, unless the record isn't sufficient; in the latter case, more litigation might be necessary.  As far as yesterday's discussion about resourcing, the Judge observes that there was no formal motion before him.  Thus the court simply reminds the defense that, if the Convening Authority denies any requests for assistance, the court will be amenable to hearing motions to compel.
Moving straight to AE278, Al-Nashiri's Learned Counsel Richard Kammen stands and says that the commission should order the Secretary of Defense to make public the method through which Al-Nashiri will be executed, should he ultimately be convicted and sentenced to death.  His argument is two-fold.  First, the lawyer says it is important to give members the opportunity to decide whether they would be comfortable sentencing Al-Nashiri to death if the Department of Defense protocol was similar to that used in the botched executions in Arizona and Oklahoma.  Second, Congress actually passed a law instructing the Secretary of Defense to publish those regulations.  Anticipating a claim that the motion wasn't yet ripe, Kammen notes that Congress had spoken definitively on the matter: "It didn't say, you know, wait until the process is over. It said publish them."  More broadly, Kammen claims that the intellectual construct of the sentencing question is different when the method of execution is an unknown variable. How can the defense argue that the method of execution is inhumane when the prosecution could simply assert otherwise?
The baton passes to prosecutor Justin Sher--who, as Kammen predicted, zooms in on the motion's prematurity: "it's not ripe until the point that the accused is unanimously convicted of a  capital offense, and only after the members make the requisite findings, and only after they unanimously sentence the accused." And because the "mode or method is either lawful or not lawful," the whole question is legal in nature and thus entirely inappropriate for commission members to consider during sentencing.  It might also not be fit solely for judicial consideration, either, suggests Sher. Unlike mitigation considerations, which must be unique to the accused and may be considered by the commission members, the manner and method of execution is a matter of clemency meant to be considered by the Convening Authority.  A little bit more follows from Sher---and even less than that from Kammen---and AE278 is quickly submitted.
That brings us swiftly to AE279, in which the defense requested 175 additional hours of funding for Mr. Ahmad Assed to continue his work as a cultural consultant focused on mitigation investigation in Saudi Arabia.  Maj. Alison Daniels takes up this item for the defense.  Mr. Assed is critical for a number of reasons, she says, not least of which is that he is the only one on the defense team capable of speaking with Al-Nashiri's family, visiting his old neighborhood, and acquiring his school records, all located in Mecca.  (Nobody else involved in the mitigation effort is Muslim, a pre-requisite for travel to Mecca; such people also do not speak Arabic.)
Speaking through Lt. Paul Morris, the government responds that the defense needs to show more specificity before its request can be properly granted. For his part, Judge Spath seems to disagree: not only is the request clear, he said, but "if the convening authority believes the best approach is to try this as a capital case, that's fine, but they should be prepared to spend the kind of money that a capital case requires, and when you have a capital case that involves somebody from an overseas country, it's going to cost more."  The evident skepticism does not bring a bench ruling, though; we'll apparently await decision on the motion.