American Civil Liberties Union

At the Naval Base in Guantanamo Bay this week, military commission proceedings have resumed in the capital case against Abd al-Rahim Hussayn Muhammad al-Nashiri, a 47-year-old citizen of Saudi Arabia, who is facing a possible death sentence for his alleged involvement in the bombing of the destroyer USS Cole over a decade ago.  Apprehended in 2002, Mr. al-Nashiri was held by the CIA for four years in secret before his transfer to military custody.  According to a 2004 CIA Inspector General report, he was waterboarded and threatened during an interrogation with a power drill and handgun.  

This weekend, Bill Moyers’ public television show is devoting a full hour to Reckoning With Torture, the innovative film project by director Doug Liman, the ACLU, and PEN American Center. The movie will tell the story of America’s torture program using the government’s own documents. Here’s a preview of the upcoming Moyers & Company episode: http://billmoyers.com/segment/preview-reckoning-with-torture/

As I watched the arraignment Saturday of five accused conspirators in the 9/11 attacks, I was reminded of Yogi Berra. Sadly, it was a case of déjà vu all over again.

This week, I've been in Guantánamo Bay observing a hearing in the first capital case before this latest iteration of military commissions, that of Abd al-Rahim Hussayn Muhammad al-Nashiri. As the hearing has progressed over the last few days, a recurring theme has surfaced: the military commission system will not provide basic legal protections inherent in every other American courtroom. But, the prosecution says, in essence, not to worry: even with these protections swept aside, you can trust us to do the right thing. As I wrote yesterday, the prosecution — and perhaps the judge — does not believe the Constitution applies to Guantánamo prisoners. Chief Prosecutor Brig. Gen. Mark Martins emphasized in a press conference yesterday that the Guantánamo military commissions will be held consistent with our country's values — but apparently just not our constitutional values. In court, Judge James Pohl similarly seems to follow a loose notion of "fundamental fairness" but has so far refused to ground that notion in constitutional law. But trust us.