Yesterday, the man accused of planning the 2000 U.S.S. Cole bombing appeared before the world for the first time, nine years after his capture, at a military commission hearing at Guantánamo. I was there to observe the proceedings for the ACLU.
The arraignment of Abd al-Rahim Hussayn Muhammad al-Nashiri (pronounced al-NAH-shiri) was the beginning of what will likely be a years-long death penalty trial before a military commission. Mr. al-Nashiri wore a white smock and trousers (similar to a doctor's scrubs, just a bit thicker and baggier).
Mr. al-Nashiri’s attorney told the court that the start of these proceedings meant Mr. al-Nashiri finally has something concrete in his life. But it seems that very little in this Guantánamo military commission is truly concrete. Speaking from the bench, the judge himself, Army Col. James Pohl, admitted some of the key uncertainties and problems that threaten a fair trial. Judge Pohl has never tried a death penalty case. When asked about mitigation — the portion of a death penalty trial in which the defense gets to argue why the accused should not be put to death — Judge Pohl stated he needed to research it more.
More fundamentally, Judge Pohl recognized that in Guantánamo military commissions, “there are gaps not present in other more developed systems.” The new regulations for the military commissions (a 202-page document) were only issued on Monday and are untested. There has been only one contested Guantánamo military commission trial to date, and little precedent to follow. This stands in stark contrast to the 200-plus years’ worth of guidance and precedent available in the federal criminal justice system.
Perhaps most worryingly, Judge Pohl stated that it was his job to follow the Guantánamo military commission rules and law even if they lead to an unreliable result. We are tinkering with the machinery of death and even with a mechanic like Judge Pohl, who comes across as fair minded, justice is unlikely because the tools are inadequate and the system is unfair.
The hearing yesterday would have taken mere minutes in federal court, but stretched for hours here in Guantánamo. Time and resources were diverted to issues that would never need to come before a federal judge because federal courts resolved them long ago. The defense told Judge Pohl that the government was reading attorney-client mail, which federal courts have long held is unquestionably wrong. Judge Pohl ruled the government had to stop doing so — in this case only — though only after over an hour of argument and the testimony of the military lawyer who has been overseeing the reading of the mail to date.
The military commission spent significant time on whether or not the defense has to tell the government why it needs an expert to work on the case, thereby tipping off the prosecution as to a possible line of defense. The judge left that question for another day, even though it is a long-established practice in federal courts that the defense can submit such requests to the judge without having to reveal them to the government.
Down the line, the questions will get much more serious. Will the CIA finally be forced to reveal where it held Mr. al-Nashiri for four years and what it did to him? Will coerced evidence be entered into the record? Will hearsay even two or three times removed from the original source be used against Mr. al-Nashiri? It should go without saying that a trial tainted by secrecy, evidence that is the fruit of cruel treatment, and unreliable hearsay, cannot be fair — yet under the military commissions’ rules, that may be the trial Mr. al-Nashiri gets.
The prosecution asked for a trial date of February 2, 2012, less than three months from now. The judge disagreed and set the trial date for November 9, 2012. A key reason for the delay is that the government has failed to turn over evidence the defense argues that it needs to prepare for trial. The next fight will be over just how much of this material, which includes information about the CIA’s torture of Mr. al-Nashiri, the government must provide to the defense team.
If past experience is a guide, the government will try to act like Mr. al-Nashiri's four years in CIA secret prisons never happened. But revisionist history has no place in any judicial proceeding. We know already from a CIA Inspector General report released in 2009 that Mr. al-Nashiri was abused and tortured. He was waterboarded. He had a loaded gun put to his head. He had a drill revved near his face and threats to harm his family. All of that is relevant to any statements Mr. al-Nashiri has given while in U.S. custody and to the decision whether he will receive the death penalty. Only with full disclosure of the details of torture and the identities of all witnesses to and perpetrators of torture can this death penalty case even approach fairness. The judge will start to hear some of these issues in January 2012.
The financial costs of this Guantánamo military commission will be enormous, particularly because the government has chosen to seek the death penalty. The best prediction of the cost of the defense alone — let alone the costs of the prosecution, and of flying a planeload of court personnel to Guantánamo for each hearing — is in the millions. Any death penalty case is expensive; a Guantánamo military commission, with all the delays that will ensue because of those “gaps” Judge Pohl identified in what he referred to as a “unique” system, will be exorbitantly so.
Other costs may be even more profound. Families of the victims of the U.S.S. Cole bombing also attended the hearing. Afterwards they spoke of their hope for justice, but the justice they seek must be the product of a fair and open trial. Those families should not have to sit through novel proceedings that are virtually being created from scratch when a tried, tested, and trusted alternative exists: federal courts.
Yesterday, we had a preview of all that is wrong with trying Mr. al-Nashiri's case before a Guantánamo military commission, and the challenges to come. Justice — for the U.S.S. Cole families, for Mr. al-Nashiri, for all of us — demands that we be in federal court.