Posted on Fri, Apr. 20, 2012
last updated: April 20, 2012 06:55:41 PM
In arguing that the U.S. discriminates against alleged al Qaida terrorists by subjecting them to a special war court, a Pentagon defense attorney invoked a surprising precedent at Guantánamo Bay, Cuba, last week: The 1993 U.S. Supreme Court decision allowing animal sacrifice in Hialeah.
Its called The Church of Lukumi Babalu Aye v. the City of Hialeah, and its mere mention by Pentagon defense attorney Michel Paradis drew a stare of confusion from the court stenographer and puzzlement by others.
Legal scholars may know the case, but many spectators had never heard it before. Not out loud, anyway.
Lukumi Babalu Aye came up as defense lawyers for Abd al Rahim al Nashiri, a 48-year-old Saudi imprisoned at Guantánamo, urged the judge to throw out the capital case on grounds that the court where he presides violates the Due Process clause of the Constitution, to effectively rule himself out of the job.
Army Col. James L. Pohl, the judge, has yet to rule.
Similar defenses have failed at earlier military commission cases but this is the first where the Pentagon prosecutor is seeking the death penalty. Nashiri is accused of orchestrating al Qaidas bombing of the USS Cole warship off Yemen in October 2000 that killed 17 U.S. sailors.
The legislative history is important, Paradis argued, drawing a comparison between the 1980s deliberations of the Hialeah City Council with Congressional debate that set up the war court in 2006.
In the case that went to the Supreme Court, Hialeah adopted a series of ordinances in 1987 that banned animal sacrifices while allowing commercial slaughterhouse operations as well as kosher butchering of meat, sport hunting, fishing, even the trapping of rats and mice. The ban was framed as a public health regulation, but public records showed that Hialeahs elected leaders adopted it to try to block Santeros from setting up a church in the city.
The U.S. Supreme Court unanimously struck it down in 1993.
Justice Anthony M. Kennedy wrote that the ordinances violated the nations essential commitment to religious freedom.
The Pentagons chief prosecutor for war crimes, Army Brig. Gen. Mark Martins, defended Congress creation of military commissions. They were first set up during the Bush administration then Congress reformed them, at the request of President Barack Obama.
Equal protection under the law, Your Honor, the government would submit does not mean identical outcomes under the law, the general told the judge. It means equal protection. And that is satisfied in this arrangement, in this distribution of jurisdiction.
At no point, however, did the discussion make clear that at issue was animal sacrifice mostly the ceremonial slaughtering of chickens a ritual that came to South Florida with practitioners of Santeria from Cuba itself. Thats the Cuba not on the Navy base where he argued, but on the other side of the minefield.
The name of the church slid off Paradis tongue in court without missing a beat. The defense team referred to the case in a briefs footnote, and Paradis said afterward that he hadnt needed to practice its pronunciation because the case name has stuck in my head ever since I first heard it in law school the Fordham School of Law, from which he graduated in 2004.
Plus, he said, its one of his favorite precedents.
Its probably one of the clearest statements that we dont discriminate, that we dont allow for discrimination, he said. Ultimately the Constitution doesnt care about what it looks like on the surface; you have to dig down to the substance of why the law was actually passed.
Human Rights Watch Counsel Reed Brody, a critic of the proceedings who was at Guantanamo to observe the Nashiri arguments, called the Supreme Court justices Hialeah decision a textbook Equal Protection case.
In other words, the Hialeah ordinance impermissibly targeted Santeria worshipers while the Military Commissions Act impermissibly targets non-citizens.