What shall we condone?

Abd al Rahim al-Nashiri’s lawyers end their letter to Navy Vice Admiral Bruce MacDonald–who will decide whether al-Nashiri will face the death penalty–with an appeal to his role in deciding what we as a nation will condone:

One pivotal and constant question has been–what shall we condone? Shall we condone a trial that allows evidence obtained from torture? Shall we condone a trial for a detainee who has been tortured?

Indeed, one of their most surprising arguments was a reminder that his predecessor, Judge Susan Crawford, refused to refer charges against Mohammed al-Qahtani because he had been tortured.

Your predecessor, Judge Susan Crawford, did not refer charges against Mohammed Al-Qahtani for his direct role in the September 11th Attacks because he was tortured. Judge Crawford stated, “His treatment met the legal definition of torture. And that’s why I did not refer the case[.]” Here, the government’s treatment of Mr. Al-Nashiri undoubtedly meets the legal definition of torture and cruel, inhuman and degrading treatment. Judge Crawford was able to review the interrogation records and other documents of Mr. Al-Qahtani’s abuse before making her decision. In this case, we assume the CIA has not provided those records to you. Even without the cooperation of the CIA, sufficient evidence has been publicly released to prove that Mr. Al-Nashiri was tortured.


In essence, the United States has lost its moral authority to seek the death penalty. Accordingly, you should not refer charges–or authorize the detah penalty–against Mr. Al-Nashiri.

I find a few things surprising. First, the suggestion that MacDonald has probably not officially been informed of al-Nashiri’s treatment. While I suppose that’s possible (it’s clear, for example, that the CIA limited how much Gitmo personnel learned of former CIA detainees), that would still be surprising.Though of course, at the very least, MacDonald has not seen the video tapes that were destroyed.

Also note that in this passage, at least, al-Nashiri’s lawyers are calling on the government to drop charges entirely against al-Nashiri, based on the Crawford precedent. Not that the appeal will work (because, particularly given that KSM is now slotted for a Gitmo Military Commission, it would take charges and the death penalty for him off the table, too). But it is notable that they asked.

Much of the rest of the letter lays out reasons I expected: al-Nashiri’s torture itself, the CIA’s destruction of exonerating evidence, the dicey appellate record for MCs, the length of time since the alleged crimes and the delay in charging, and the safety restrictions on travel to Yemen now.

And then there’s the predictable objection on legal grounds: al-Nashiri’s lawyers argue that since we weren’t at war when most of his alleged crimes occurred, an MC is an improper venue to try him. Powerfully, they cite Presidents Clinton and Bush to prove we were not at war.

When convened outside areas under martial law or military occupation, military commissions are strictly limited to the punishment of enemy forces for violations of the laws of war committed in the context of and associated with hostilities.

The limitation was affirmatively recognized and enacted by Congress into the Military Commissions Act, when it mandated that “An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.

Mind you, the government will cite Osama bin Laden’s declaration of war against the US in 1996, but it’s hard to see how that refutes President Clinton’s assertion that “America is not at war” delivered in his eulogy to those lost on the USS Cole.

If that’s not enough, though, al-Nashiri’s lawyers now have the legal opinion of Harold Koh’s conditions that define hostilities for Libya.

The question this letter asks–whether we as a country ought to impose the death penalty on someone we tortured–is a key question. But the legal argument may well be just as compelling.

16 replies
  1. BoxTurtle says:

    IMO, any tainted evidence should be tossed. If the goverment can make a capital case out of what remains, fine.

    That’s what would happen in a REAL court.

    Which is where this fellow should be in any case.

    Boxturtle (They’ll toss him in a hole before they let him in a real court)

  2. JTMinIA says:

    The idea that we can define and redefine “war” in any way that suits our current purpose, even if it is the opposite of how we defined it for some other purpose, reminded me to check if Sen Harkin ever replied to my request that he stop playing word games with the War Powers Act. (He was on Iowa Public Radio a while back and gave a weaseling reply to a question about Libya.) Here is his predictable reply to me:

    Thank you for contacting me about the ongoing NATO intervention in Libya. I appreciate hearing from you on this important matter.
    On March 19, a NATO-led series of airstrikes, in which the United States took part, imposed a no-fly zone over Libya. This action was necessary to prevent impending, large-scale civilian bloodshed in the city of Benghazi. In an attempt to put down a rebellion against his repressive regime, Libyan leader Colonel Muammar al-Qadhafi promised that his forces would storm Benghazi without mercy. Specifically, he told the people of Benghazi that his forces would go house to house, alleyway to alleyway, to find all of the “rats” and “traitors.”
    This impending slaughter prompted the international community to act. The United Nations authorized a no-fly zone. The Arab League requested an international intervention. NATO responded with a multi-lateral effort that included the United States. Because of the limited role of the United States, the multi-lateral nature of this action, and its fundamentally humanitarian mission of preventing mass slaughter,, I reluctantly supported this mission.
    Unfortunately, the President’s authority to act in these circumstances has fallen victim to Washington political games. The House of Representatives recently voted to express its disapproval of the Libya mission, but subsequently voted to continue funding that same mission. In the Senate, Majority Leader Harry Reid recently sought to debate a resolution, S.J. Res. 20, authorizing a limited role in Libya for one year, but pulled the resolution from the Senate floor when a small minority of Senate members indicated that they would block action on the resolution.
    I look forward to debating S.J.Res.20 when it is given the opportunity to be debated and voted upon. I think it is vitally important not only to clarify that our involvement in Libya is limited in nature and length, but also to make certain that our actions in Libya are clearly and unambiguously compliant with the War Powers Act.
    Again, thank you for sharing your views with me. Please do not hesitate to let me know how you feel on any issue that concerns you.


    Tom Harkin
    United States Senator

  3. scribe says:

    It’ll make a nice note when the historians of a hundred or more years hence study how and why the United State went to shit and write nice papers or books about it. They’ll probably damn this admiral and that White House lawyer for all their transgressions of basic humanity, let alone law.

    But, in the concrete today rather than in the abstract future, it won’t matter worth a damn.

  4. ferd says:

    OT: Sorry, won’t hijack a thread again…. promise.

    Norwegian officials apparently have somebody in custody who was connected to today’s Norway shooting, which is poss/prob related to today’s bombing. POINT IS, they better make TRIPLE sure that the person doesn’t “commit suicide” or meet with an “accident” before the person is fully calmed down, questioned and investigated.

    This could be an Oswald moment.

  5. DWBartoo says:

    The eloquent truth written by al-Nashiri’s attorneys should be endorsed by the American legal community, as a whole, else the legal profession’s non-action(s) will speak even more forecefully of a legal system bereft of the rule of law, and content with that self-evident truth.

    Thank you, as always, Marcy, for keeping us both informed and alerted.


  6. matthew carmody says:

    Osama bin Laden declaring war on the US has absolutely no bearing on whether or not a state of war exists. OBL was not a state actor, he was an individual.

    The US is trying to male international law in the image to which it wants to answer, not as it really exists. The world knows that the US is acting in an extra-judicial manner and is writing memos and making laws in the US just like the Nazis did to provide cover for their actions. The shame is that although we took part in the Nuremberg Trials which were supposed to provide some sort of moral answer to the monstrous actions of the Nazis, we came away from them with nothing. Our moral cloak had already been soiled by the bombs at Hiroshima and Nagasaki.

    Shame on this country and the people who call themselves Americans that we are allowing ourselves to be led into perfidy by a small minority of authoritarians who have hijacked our traditions and institutions for their own perverted goals and ambitions.

  7. bmaz says:

    Huh, these allegations by Nashiri’s lawyers are stunning, because Jose Rodriquez, DOJ and John Durham said there was nothing “material to any proceeding” on the torture tapes that were destroyed. If only someone had pointed out that they were “material” to al-Nashiri and abu-Zubaydah themselves and their future proceedings…..

  8. Garrett says:

    The cite to a Doolittle Raiders case seems moral not legal. The bombers were waterboarded, tried before military commission, not allowed to defend themselves, sentenced to death. All sorts of strong parallels.

    A quote from the appeal:

    The United States has prosecuted a Japanese convening authority, a prosecutor, and a judge, for complicity in torture by virtue of their participation in a military commission of American flyers who had been waterboarded by Japanese intelligence.

    I haven’t found any direct document on the case, but the charges against the Japanese commission seem to be about using tortured evidence itself, and using tortured evidence to put people to death, and using torture to justify status determinations that were used to get around prohibitions against torture, and such.

    The cite to the case seems to be an attempt to get the Convening Authority to read the case. Because of the strong parallels.

    • bmaz says:

      Right. But, at some point, and we are way past that intersection now, morality merges with law. Not that what subsists as justice within the United States recognize any such things, but the government should be estopped due to past position and precedent, international signed obligations etc. None of that seems to matter any more than the founding principles do. Sad.

  9. DWBartoo says:

    Garret @10.

    I think you are correct regarding the moral motivation of citing “a Doolittle Raiders case” and the hopes that it might be read.

    The numerous appeals to fundamental legal principle is also notable.

    If such susaion is being presented Vice Admiral McDonald by the defense, then one wonders at the nature and context of the government’s presumably multi-layered “efforts” now being lavished upon McDonald, as well.


  10. Bob Schacht says:

    @9, bmaz on July 22, 2011 at 3:28 pm said:

    “Huh, these allegations by Nashiri’s lawyers are stunning, because Jose Rodriquez, DOJ and John Durham said there was nothing “material to any proceeding” on the torture tapes that were destroyed. If only someone had pointed out that they were “material” to al-Nashiri and abu-Zubaydah themselves and their future proceedings…..

    Does anyone have standing to demand that the DOJ re-open Durham’s exploration in light of this? Like, maybe, al-Nashiri’s lawyers?

    Bob in AZ

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