Innocence Is No Defense— Harper’s Magazine
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.