leader Abd al Rahim al-Nashiri, one of fifteen of the U.S. Government’s High Value Detainees (HVD) and the test-case
for the Obama Administration's new Military Commission trials, was arraigned today in a high-security courtroom at GTMO Camp
Justice. Live feeds of the high-stakes proceedings were provided to both Ft. Meade, MD, and Norfolk, VA.
flanked at his elbows by uniformed, gloved security guards, al-Nashiri entered GTMO’s Courtroom #2 at Camp Victory slightly
after nine a.m. It was the first time that the alleged terrorist leader had appeared in public since his 2002
capture -- see Ben Fox's AP story with Janet Hamlin's courtroom sketches here...
Clean-shaven, seemingly well-fed, arms and legs unshackled and wearing his white prison uniform, al-Nashiri
flashed “thumbs up” to his translator and legal counsel, smiled broadly, and even waved to the 55-person gallery
of media, NGO representatives, USS Cole survivors and the family members of the deceased. “He seemed cocky to
me" said John Clodfelter, a military veteran and father of Kenneth Clodfelter, a sailor who was killed in the 2000 attack
on the USS Cole. Mr. Clodfelter, in comments to reporters after the arraignment, went on to say that "he [al-Nashiri]
was waving his hands… just like a repeat of what the bombers did themselves just before they bombed the [USS] Cole."
Through four hours
of deliberation, al-Nashiri sat slouched in his chair, listening to a simultaneous translation of the proceedings and responding,
via his translator, to questions from the judge, Army Colonel James L. Pohl, who was appointed in January 2009 to serve as the Chief Presiding Officer for the Military Commissions.
Judge Pohl spent the first part of today's proceedings making certain that al-Nashiri understood
the charges against him (he said he did) and whether he was fully aware of his rights to legal counsel (he said that his attorneys
(“At this moment these lawyers are doing the right job.” ). The hearing turned towards vetting whether the
defense lawyers had conflicts or the judge had predispositions towards torture or the death penalty that might prevent a fair
trial of al-Nashiri. The
judge then turned towards deliberating on three pre-trial motions from the defense.
The day's proceeding
were to culminate with the reading of the nine charges against al-Nashiri, but he waived this public airing of his purported
deeds and announced a decision to reserve a plea
in the case. This means that he and his counsel put off making a choice on whether he would plead guilty or not guilty
until the formal trial begins.
As DSJ outlined yesterday, al-Nashiri is charged by the Government with murder, terrorism and conspiracy connected with
the planning and execution of three attacks, including the attack on the USS Cole (DDG 67) in October 2000 that killed
17 sailors and wounded 37. According to the charges, al-Nashiri planned the complex series of attacks known as the
"boats operation" with Osama Bin Laden and Khallad bin Attash and carried them out with various forms of assistance
and participation from 23 other named individuals. Should he be found guilty on the charges, al-Nashiri will face the
death penalty, the first such punishment pursued by the Military Commissions since their creation.
defense motions were addressed during the arraignment that foreshadowed the likely lines of argument that the defense team
will use when the al-Nashiri case eventually comes to trial.
(1) Appropriate relief -- The defense
argued that it needs to know whether al-Nashiri will be released if he is acquitted. This is critical to know at the
outset, his counsel maintained, as it will impact preparation of the defense strategy and the lack of clarity on the matter
could place jury (Military Commission) members in a difficult position to pass judgment in a capital case. The Government
countered that the determination of al-Nashiri's status is a decision "separate and apart" from current deliberations.
Defense counsel Richard Kammen made clear to reporters, post-arraignment, that the motion stands no chance. “I can’t imagine in today’s political environment, or next year’s
political environment, that any President would authorize his release. To suggest otherwise would be naive
at best and disingenuous at worst." Anthony Mattivi, a member
of the prosecution team representing the U.S. Government, said raising this issue now is “unripe preliminary argument.”
(2) Expert Assistance
-- The defense requested flexibility in its rights -- and associated budget provided -- to retain
professional services in support of their case. It was agreed that the defense and prosecution would define
a common approach to the matter and submit it for consideration by the Convening Authority -- the organization responsible
for overseeing many aspects of the military commission process and for supervising the Office of Military Commissions.
Privilege -- The defense requested that the Government stop reading its privileged attorney-client exchanges.
While the rules governing this practice had been changed in 2008, in October 2011 the Government began to read privileged
exchanges between attorneys and their GTMO-bound clientele. Although the Government defended the new practice on security
grounds and said that it was a fire-walled one-time baseline assessment that did not inform the prosecution's case, Judge
Pohl saw it differently, pronounced it an infringement, and ruled that the Government must cease its current practice.
As to when the trial
of al-Nashir will commence, Mr. Mattivi said the prosecution
team would be ready by February 2, 2012. Mr. Kammen said the defense team would require at least a year to prepare for
trial. In subsequent comments, Mr. Kammen said that "it is very,
very, very unlikely that a year will be sufficient for us to gather all of the information we need for the defense" adding
that he believes it will take “far in excess of a year" for the defense to be prepared.