Defenders: Tell alleged bomber’s jury if acquittal means release

In the war on terror detention system the Bush and Obama administrations built, a captive can be executed if he’s convicted of a capital crime and kept forever if he’s acquitted. And defense attorneys for the next alleged terrorist to be tried at Guantánamo want jurors told this from the start.

Lawyers for Saudi-born captive Abd al Rahim al Nashiri made the request of the military commissions chief judge, Army Col. James Pohl, in a motion filed last week. The Pentagon unsealed it uncensored late Monday.

The defenders argue that that the American military officers in the jury pool should be told before they agree to serve at the war crimes court whether the Defense Department would still incarcerate Nashiri, even if found not guilty. Nashiri faces arraignment at the U.S. Navy base Nov. 9.

Some jurors might not want to serve in a system that does not grant a jury the power to free an innocent man, Navy Lt. Cmdr. Stephen Reyes and civilian defense counsel Rick Kammen argued in their six-page brief. Prosecutors have yet to reply

Nashiri, 46, allegedly orchestrated al Qaida’s suicide bombing of the USS Cole naval destroyer off Yemen that killed 17 American sailors in October 2000.

“A trial, to be meaningful to society and the defendant, must hold the possibility of both punishment and reprieve for the accused,” the defenders wrote. “But if the government intends to hold him in perpetuity regardless of the outcome, the sentence of death is the √only result that changes anything.”

The Bush White House had maintained that it could imprison indefinitely a Guantánamo captive whom a military commission acquitted of war crimes — an interpretation that the Obama administration has also adopted.

“I think that as a matter of legal authority, if you have the authority under the laws of war to detain someone,” Pentagon General Counsel Jeh Johnson told a Congressional hearing on July 7, 2009, “that is true irrespective of what happens on the prosecution side.”

Under that interpretation, even if a jury concludes that a captive’s deeds did not constitute war crimes, his affiliation with the enemy, such as al Qaida, makes him subject to indefinite detention under post -9/11 U.S. doctrine.

Nashiri’s is the first capital war crimes prosecution of the Obama administration. A self-described former Saudi millionaire from Mecca, he has been held since 2002, starting at a secret CIA site. U.S. agents waterboarded him and chambered a round in a gun and revved a drill near his head to get him to cooperate with interrogators, “treatment regarded by most as torture,” his lawyers argue.

There is no specific system of execution assigned to death penalty cases at Guantánamo. Under military commission rules, it is up to Secretary of Defense Leon Panetta to decide the method.