Prosecutor: Guantánamo court can’t free innocent captive

Miami HeraldNovember 2, 2011 

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.

Nashiri’s Camp Justice appearance will mark the first time he’s seen in public since his 2002 capture in the Arabian Gulf region and disappearance into a network of secret CIA prisons called “black sites.” He allegedly ran Al Qaida’s gulf attacks before and after 9/11. A Congressional inquiry found that he was waterboarded and interrogated by loading a gun and revving a drill near his head.

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 a motion.

Military commissions only have the authority to try Nashiri on war-crimes charges, prosecutor Anthony Mattivi replied in an eight-page brief. “Congress did not authorize the commissions to resolve every aspect of the life of the accused,” Mattivi wrote.

Acquittal would only mean that Nashiri wouldn’t be subject to the double jeopardy of a future trial on the same charges, he said.

The prosecutor urged the judge, Army Col. James Pohl, not to inform the jury pool of its limited authority. He argued it is entirely separate from the government’s law-of-war authority to hold foreigners who “more likely than not” supported al Qaida or the Taliban, or the groups’ “associated forces” as long as there’s a war on terror.

“The government cannot know if the hostilities in which al Qaida and the United States remain engaged will cease before the conclusion of the trial of the accused,” prosecutors also noted.

The Nashiri case is also likely the first to come to trial by military commission seeking the death penalty by a system of execution yet to be determined by Defense Secretary Leon Panetta. Prosecutors have sworn out death penalty charges against five Guantánamo captives accused of orchestrating the Sept. 11, 2001 mass murder. But they have yet to be formally charged.

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