The move was among several pre-trial motions heard in the murder
case against Abd al-Rahim al Nashiri at Guantanamo Bay, Cuba, viewed
by closed-circuit television at Fort Meade.
The charges Nashiri is faced with — among them murder, terrorism and
conspiracy — carry the death penalty.
In arguing for dismissal of the death penalty in his case, lawyers
for the 49-year-old Saudi national challenged the constitutionality
of several facets of the military commissions, among other
Defense counsel Navy Commander Brian Mizer in one motion argued that
when murder is not premeditated, the death penalty shouldn't apply.
"It is going to involve substantial involvement — not just rented an
apartment, not just bought a boat," said Mizer, citing what
prosecutors have said would likely amount to evidence against
"The Eighth Amendment simply does not allow an accused to be put to
death," he said, referring to the prohibition against cruel and
On the prosecution side, Army Major Evan Seamone argued that under
international law, as well as domestic, the death penalty has been
applied to serious war crimes.
"Death would be available for these particularly egregious
offenses," Seamone said.
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A closed session will take place on Saturday in Guantanamo to review
classified material in the case, according to U.S. Army Colonel
Judge James Pohl. The open sessions will continue on Monday.
Experts believe that because the Nashiri case comes before a
military court and involves the death penalty, it will set many
"They're going to see more litigation trying to parse out what it
means to have a special military war court try complex, high-stakes
capital terrorism cases," said Wells Bennett, fellow in National
Security Law at the Brookings Institution. Bennett is also managing
editor of the Lawfare blog where he is observing and blogging about
the Guantanamo military commissions.
(Editing by Barbara Goldberg and Ken Wills)
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