Defenders want accused Cole bomber's jury told if acquittal equals freedom

Miami HeraldOctober 25, 2011 

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 Guant¨¢namo 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 ¡Ìonly result that changes anything.¡±

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

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