No Comment — November 4, 2011, 10:36 am

Innocence Is No Defense

The Miami Herald’s Carol Rosenberg reports:

The U.S. military tribunal for the USS Cole bombing suspect has no power to free a captive found innocent of war crimes but shouldn’t be told the terror suspect could be held for life anyway, Pentagon prosecutors said in a court document made public Wednesday.

Defense lawyers want the judge presiding at the death-penalty trial of Abd al Rahim al Nashiri to notify would-be jurors that acquittal of war crimes won’t necessarily mean the Saudi-born captive walks free from the U.S. prison camps at Guantánamo.

In their motion, al-Nashiri’s lawyers had pressed the prosecution for a clear statement on what would happen in the event of an acquittal, arguing that prosecutors not be permitted to suggest to the jury that the defendant will go free. They quoted from an article written by Robert H. Jackson, a Supreme Court justice then on special leave to handle the prosecutions at Nuremberg: “The ultimate principle is that you must put no man on trial under the forms [of] judicial proceedings if you are not willing to see him freed if not proven guilty.”

The prosecutors responded with a brief acknowledging that al-Nashiri would not be released if acquitted. Still, they insisted that the military jury has no right to know this, writing “The legality of the accused’s law-of-war detention is a matter beyond the scope of commission proceedings.”

At one level, this exchange covers fairly technical legal matters related to the jurisdiction of military commissions and the difference between criminal charges and ones under the laws of armed conflict. But at its core, the defense motion is a clever effort to expose the political underpinnings of the entire military-commission system. Republicans have long argued that terrorism cases should be sent to this system because the result there is more certain. These arguments do a disservice to the uniformed professionals who staff the cases, as well as to the military juries, who, Republicans imply, can be counted upon to produce the outcome politicians want.

In The Black Banners, former FBI agent Ali Soufan — the man who more than any other pieced together the plot against the Cole and built the case against al-Nashiri, describes the long, sometimes frustrating road that investigators traveled. Many of their troubles were caused by political actors: an ambassador concerned that investigators were disturbing relations with Yemen; a White House administration (George W. Bush’s) less concerned about the matter than its predecessor, and happy to see it recede from public view.

Since the fall of 2001, the already-too-routine politicization of the criminal-justice system has accelerated. Politicians take the public stage, identify specific persons as culprits, and talk aggressively about how and where suspects should be charged. Congress entertains proposals that would restrict the options afforded to prosecutors in deciding what charges to bring and where. These political efforts have plainly been targeted at eliminating the prospect of acquittal. This may be smart domestic politics, but it treats our criminal justice system as a doormat.

The case against al-Nashiri does not strike me as marginal or doubtful. The evidence the prosecution has amassed is impressive, as it needs to be in a capital case. On the other hand, the defendant was waterboarded and threatened with a power drill, and had his mother threatened with sexual assault. This gross misconduct tainted the evidence it produced, greatly complicating the prosecutor’s task.

Abd Rahim al-Nashiri’s case is not the only one at Guantánamo, but it marks an important test on many counts. His trial is being watched closely by a world eager to see what justice means to America today. The defense team has demonstrated that it is fully aware of this fact and intends to benefit from it as much as possible. That is their right. It is important, regardless, that the prosecution and judge proceed in a manner that reinforces their own commitment to justice, and their indifference to the political winds blowing in from outside the courtroom, particularly from the Washington beltway.

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