Wednesday, February 13, 2008

Death by Military Commission?

My FindLaw column today examines the Bush Administration's decision to charge six alleged al Qaeda operatives with capital offenses. I explain why the decision cannot be justified on a deterrence rationale but perhaps can be justified in retributivist terms. Here I'll highlight a few points I gloss over in the column.

1) Section 948r(b) of the Military Commissions Act (MCA) forbids the introduction of statements obtained via torture in a military trial (except to prove that a defendant charged with having engaged in torture did so), but the Act does not expressly state whether evidence that is otherwise reliable but was derived from torture---what would be barred as "fruit of the poisonous tree" in domestic cases---is admissible. I would expect the government to argue that there is no such derivative use prohibition in the MCA and that the Constitution does not require a contrary result (because, the government will say, enemy aliens outside the U.S. charged with crimes have no constitutional rights or, if they do have constitutional rights, only weak ones). That's what I would expect, but in talking yesterday with William Glaberson of the NY Times, I learned that the government plans to argue that all of its evidence was derived independently of the waterboarding.

2) Glaberson floated the idea that defense counsel will try to make the cases all about torture. One way the lawyers might do so, he said, was by arguing that Khalid Shaikh Mohammed is so scarred by his experience that he cannot effectively participate in his own defense. If the defense makes this argument, look for the government to say that in the military commission context, a defendant has no constitutional right to be able to participate in his own defense.

3) I think a better way for the defense to make torture relevant is to rely on Section 949s of the MCA, which forbids "cruel and unusual punishment." I suggest in my FindLaw column that this prohibition incorporates by reference the 8th Amendment standard, including the Supreme Court's death penalty jurisprudence. The Court's case law, in turn, requires that defendants in capital cases must be entitled to introduce any mitigating evidence. A point I don't make in the column is that this could include evidence that a defendant who has been subjected to waterboarding has suffered enough, and so shouldn't also be executed. I don't think this would ultimately persuade a military commission to spare his life, but it certainly could inject the torture issue into the case.

Posted by Mike Dorf