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GTMO's Camp Justice Courtroom #2 was the venue for the al-Nashiri arraignment

GTMO Arraignment Looms for Alleged USS Cole bomber al-Nashiri

8 November 2011 – Guantanamo Bay Naval Station, Cuba
Mr. al-Nashiri (46), a Saudi of Yemeni decent who was captured in 2002, arrived at GTMO for detention in 2006.   The murder, terrorism and conspiracy charges against him allege, among other things, that al-Nashiri was in charge of the planning and preparation for the attack on the USS Cole (DDG 67) in the Port of Aden, Yemen, in October 2000.  The attack killed 17 sailors and wounded 37.  The charges further allege that al-Nashiri was in charge of the planning and preparation for attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in October 2002. This attack resulted in the death of one crewmember and the release of approximately 90,000 barrels of oil into the Gulf.

Attracting critical international attention here in the run-up to Mr. al-Nashiri's arraignment and trial -- an event that a member of the prosecuting team characterized today as "the most important trial since Nuremburg" -- are several issues:

(1) Torture -- Perhaps the largest looming issue is how Mr. al-Nashiri's 2007 "closed court" confessions were obtained and whether this information can and will be used against him in this first-ever capital case.  
  • Office of Military Commissions' Chief Prosecutor (and President Barrack Obama's Harvard Law Review editor) Army Brigadier General Mark Martins made abundantly clear to journalists today that information obtained through coercion has no place in the Military Commission proceedings and will have no place in his courtroom.  Said Martins: "Let me start with an important provision in the Military Commissions Act that requires statements that are admitted to be voluntary, and it precludes the admission of any statement obtained as a result of torture or cruel, inhuman or degrading treatment."
  • Richard Kammen, the DoD-appointed "learned counsel" defense attorney for Mr. al Nashiri, made clear that the torture of Mr. al Nashiri, which is reported to have included mock executions and dozens of waterboarding sessions by the CIA, would be at the center of the defense's case.  "One of the very powerful arguments that we intend to make at every stage of the proceedings is that by torturing Mr. al-Nashri, the United States really lost all moral authority to try and kill him."

(2) Release of Regulations -- The U.S. Government just this Monday released its long-awaited regulations for military commissions.  The timing of the release of the document -- on the very day that the defense and prosecution teams, victims' families, and the media were arriving at the revived "Camp Victory" adjacent the Court Room #1 and just two days before the arraignment -- has heightened tensions.

  • General Martins told reporters today that this concern is much ado about nothing.   He characterized the 202-page document as essentially administrivia, containing details on administration, implementing procedures, and public access, saying in sum "none of these changes are unfair to the accused."
  • Mr. Nashiri previously faced charges in the bombing, but they were dropped in 2009 as the Obama administration revamped the military commission process.  Now, the "rulebook" for the proceedings is released just before trial.  Richard Kammen told reporters today that the move was in keeping with the way that the Government has pursued these Military Commissions.  “This is not a real court" adding "This is a system that is organized to convict, it is organized to kill.  There is nothing about this that is fair.”

(3) Attorney-Client Privilege Violation -- The Washington Post reported last week -- and the Department of Defense confirmed, that attorneys for a significant number of GTMO detainees had filed a motion on 26 October to bar GTMO officials from reading privileged attorney-client communication — a new practice that they allege is a sharp break with past practice.  Said the filing: “violations of the attorney-client privilege are acutely egregious in the context of death penalty litigation where the Supreme Court has long held that heightened due process applies.”

(4) "No-Win" Post-Acquittal Detention -- A final shadow hanging over these proceedings is what happens to Mr. al-Nashiri if he is found to be innocent.  Last week Mr. al-Nashiri's attorneys moved for an order obliging the government to declare whether it would continue to hold al-Nashiri in military custody in the event of an acquittal in his military commission proceeding.  As Robert Chesney notes, the short memo supporting  the motion criticizes this possibility as making a sham of the trial, but ultimately the main point raised is that the defense needs the information in order to best advise Mr. al-Nashiri and to form trial strategy.  The defense argues that al-Nashiri is entitled to an answer to this question under the Military Commission Act, the Detainee Treatment Act, and the 5th, 6th, and 8th Amendments of the Constitution.

Those looking for any finality in Wednesday's deliberations will be disappointed.  The arraignment -- which includes an opening session, a reading of charges unless waived by the accused, an adjudication of prosecution and defense motions, and a plea from the accused -- will likely be brief.  As General Martins told reporters today: "It's a process with very limited objectives." 

As for what's next and when, General Martins noted that the law calls on the Government to bring a speedy trial -- within 120 days of the announcement of charges-- unless there are compelling reasons, including defense requests, to delay doing so. 

Mr. Kammen, speaking for the defense, suggested that the timeline for what is "probably the most complex death penalty case in history" could be years longer, adding that the defense is burdened by having had absolutely no indication to date of the evidence against Mr. Nashiri.  "We have not been provided the first scrap of discovery, so we don't have any real idea on what the government bases its case."  He added the standard suspense on a capital case is 2.5 to 3 years, but noted that in these civil cases, the defense has far more early access to information than he has been provided. 

As for the place of this trial in the broader scope of the U.S. Government's legal prosecution of terrorism suspects, it seems a concensus view here that how these issues are addressed and adjudicated relative to the al-Nashiri case -- and how this adjudication is viewed in the United States and beyond -- will have considerable bearing on how and when the U.S. Government pursues its pending cases against Khalid Sheikh Mohammed and four other 9/11 attack co-conspirators over the next several years.