"Khalid Sheikh Mohammed and four co-defendants said Monday that they
were ready to confess to orchestrating the Sept. 11, 2001, terror
attack on the U.S. that killed nearly 3,000 people, asking a military
judge to take their guilty pleas at once," reports Jess Bravin in the WSJ. "All five defendants face possible death sentences."
"Col. Henley [the judge] also asked prosecutors to file briefs on an apparent ambiguity in the 2006 Military Commissions Act, which suggests that a death sentence can be imposed only by the unanimous agreement of a military jury."
That shouldn't be a problem, but it is surprising that Congress repeated a mistake that was at issue in a notorious Supreme Court case. Here is a nickel tour of the Military Commissions Act and the death penalty (all section references are to 10 U.S.C., chapter 47A):
"Col. Henley [the judge] also asked prosecutors to file briefs on an apparent ambiguity in the 2006 Military Commissions Act, which suggests that a death sentence can be imposed only by the unanimous agreement of a military jury."
That shouldn't be a problem, but it is surprising that Congress repeated a mistake that was at issue in a notorious Supreme Court case. Here is a nickel tour of the Military Commissions Act and the death penalty (all section references are to 10 U.S.C., chapter 47A):
§ 948d(d) -- death authorized as a punishment when allowed by this chapter or the law of war.
§ 949m(a)(2) -- number of members of the commission. (No, it's not a "jury.") Cross-reference § 949m(c) for capital cases.
§ 949m(b)(1) -- prerequisites for death penalty
§ 949m(c) -- 12-member commission for death sentence
§ 950c -- (a) automatic appeal; (b) not waivable for death sentence
§ 950v(b) -- crimes triable by commission. The 9/11 attacks are clearly included and capital under (1), (2), & (24).
So, what's the deal with the unanimous conviction requirement? That provision is obviously intended as a protection for the defendant in contested cases, not guilty pleas. In United States v. Jackson, 390 U.S. 570 (1968), the Supreme Court misconstrued the Federal Kidnapping Act to not allow the death penalty in the case of a guilty plea because the statute only authorized the death penalty upon recommendation of the jury, and it did not expressly provide for a penalty-only jury in the event of a guilty plea. As so misconstrued, the death-penalty-hostile Supreme Court of 1968 declared the statute unconstitutional as burdening the right of the defendant to plead not guilty and demand trial by jury.
In the case of the military commission, there is no reason that the requisite 12-member commission cannot convene, enter a verdict of guilty without a trial on the defendant's plea, and then proceed to consider sentence. Still, it is strange that Congress enacted the statute with this ambiguity, considering the notoriety of the Jackson case. Those who forget the past are once again condemned to repeat it.
§ 949m(a)(2) -- number of members of the commission. (No, it's not a "jury.") Cross-reference § 949m(c) for capital cases.
§ 949m(b)(1) -- prerequisites for death penalty
(A) authorized by chapter or law of war
(B) expressly sought by "trial counsel" (the prosecutor)
(C) unanimous conviction (this is the problematic provision)
(D) unanimous sentence
§ 949m(c) -- 12-member commission for death sentence
§ 950c -- (a) automatic appeal; (b) not waivable for death sentence
§ 950v(b) -- crimes triable by commission. The 9/11 attacks are clearly included and capital under (1), (2), & (24).
So, what's the deal with the unanimous conviction requirement? That provision is obviously intended as a protection for the defendant in contested cases, not guilty pleas. In United States v. Jackson, 390 U.S. 570 (1968), the Supreme Court misconstrued the Federal Kidnapping Act to not allow the death penalty in the case of a guilty plea because the statute only authorized the death penalty upon recommendation of the jury, and it did not expressly provide for a penalty-only jury in the event of a guilty plea. As so misconstrued, the death-penalty-hostile Supreme Court of 1968 declared the statute unconstitutional as burdening the right of the defendant to plead not guilty and demand trial by jury.
In the case of the military commission, there is no reason that the requisite 12-member commission cannot convene, enter a verdict of guilty without a trial on the defendant's plea, and then proceed to consider sentence. Still, it is strange that Congress enacted the statute with this ambiguity, considering the notoriety of the Jackson case. Those who forget the past are once again condemned to repeat it.
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