The Road to Death at Guantánamo

Tomorrow, we start down the dark path to a possible execution in Guantánamo. As the Supreme Court has long said, death is different. Putting someone on trial for his life requires — at a bare minimum — a rigorously fair process if even the appearance of legitimacy is to be maintained. Nowhere will that be clearer than in the first Guantánamo military commission death penalty case, that of Abd al-Rahim Hussayn Muhammad al-Nashiri, who was held secretly for years by the CIA, and — as the government has admitted — tortured.

On Wednesday, Mr. al-Nashiri will appear before the world for the first time since he was seized more than eight years ago. He will stand up and state whether he pleads guilty or innocent to planning the 2000 bombing of the U.S.S. Cole. Should he be found guilty, he may be executed. But the Guantánamo military commission he will appear before will not provide justice for him, for the U.S.S. Cole victims, or for Americans anywhere. I will be at Guantánamo tomorrow to observe the proceedings for the ACLU.

John Brennan, President Obama’s chief counterterrorism advisor, claimed in a speech at Harvard on September 16, 2011 that “reformed military commissions… provide all of the core protections that are necessary to ensure a fair trial.” But if that is the case — if the basic structure of a Guantánamo military commission is the same as a civilian court — why is a Guantánamo military commission necessary at all? After all, a U.S.S. Cole indictment sits waiting in federal court.

The answer comes from Brennan as well: real differences do remain between a commission and a federal trial. Among them are the admissibility of hearsay, on which the government plans to rely heavily in this case, and the admissibility of coerced evidence. As Mr. Brennan conceded, those are “differences that can determine whether a prosecution is more likely to succeed or fail.” Put another way, the Obama Administration has chosen a Guantánamo military commission for Mr. Al-Nashiri because they think the rules of evidence there are lax enough that they are certain to win. It is hard to make the argument that you are in favor of the rule of law when you make decisions based on the rule of victory.

But the flaws of the Guantánamo military commissions are such that any victory will be years in the making — and may well prove pyrrhic. Since this is a system designed entirely from scratch, there is virtually no legal history testing its contours. Unresolved legal clouds loom. Can a Guantánamo military commission try someone for crimes, like those alleged here, that took place before September 11, 2001? A Guantánamo military commission has jurisdiction only over war crimes, but were we at war before 9/11? If not, the power of the Guantánamo commission to hear this case vanishes. Was one of the key charges against Mr. al-Nashiri, conspiracy, a war crime at the time Mr. al-Nashiri was allegedly acting? Four of the eight Supreme Court justices who have considered this have said no. If it was not a war crime, did Congress violate the Ex Post Facto Clause of the Constitution when in 2006 it retroactively made it one? Is it legitimate to use evidence that is the poisonous fruit of coercion? Even if the coerced statement itself is thrown out, can the prosecution still use information that was gathered only thanks to that coercion, such as the names of possible witnesses?

In all likelihood, it will take years for the Supreme Court to resolve these issues. Keep in mind that federal death penalty cases usually take two to two and a half years. And this is far from a usual case. The usual criminal defendant has not been tortured and secreted away for years by the government. The usual criminal case does not involve legal questions about whether the court has the power to hear the case at all. The usual criminal prosecution does not require flying the judge, lawyers, and court staff hundreds or thousands of miles every time there is a hearing. The discovery process alone will likely consume all of 2012, especially if — as expected — the government resists disclosing much of the evidence Mr. al-Nashiri’s lawyers will request, most critically anything to do with Mr. al-Nashiri’s torture in the CIA’s secret prison system. A trial may be years away.

There is far more at stake than Mr. al-Nashiri’s fate. The debate about Guantánamo military commissions versus federal courts is not just one of rhetoric, inflamed by the upcoming elections. It is one of real consequences. Some of our European allies —Germany, Sweden, the UK, Belgium, the Netherlands, and the Czech Republic, to name a few — refuse to cooperate with us on terrorism cases if intelligence being shared or a suspected terrorist being extradited is going to end up before a Guantánamo military commission. That lack of cooperation is one reason why even the CIA’s former General Counsel John Rizzo favors federal court trials for terrorism suspects. How many other allies will withhold cooperation in fighting terrorism if we do not get this right? Are we willing to risk our allies’ cooperation — and our own reputation for fairness — for the sake of putting one individual to death?

Stay tuned for more updates from Guantánamo this week.

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If/When al-Nshiri is found guilty and if/when he is executed it will only cause more problems for America. When is America going to learn, it is NOT omnipotent??

Vicki B.

Well, if he IS guilty, he gave ERIC and almost 3,000 other people a death like you can't even possibly KNOW. If he really is guilty, I don't CARE what they do to him b/c he helped kill a person I knew for 16 years, decided to have a child with and killed when he (Eric) was armed with nothing more deadly than a pencil and paper.

They burned him out of existence so fuckin' effectively that the epitaph on the headstone, that rests above the ground of empty casket that lies buried beneath it says "No day shall erase you from the memory of time."

There's no physical remains to get a confirmed death for the joke of a "death certificate" we had to get for him 10 days after we couldn't find him, and at which time I still had no belief he was gone even though I was a firefighter and SHOULD have been able to believe it. It took me more than 4 whole YEARS to actually believe he was never coming back and it took my daughter even longer.
On the night of May 2, 2011 she called and said "This means he's never coming back, doesn't it?"
Thinking she was referring to Osama bin Laden, whom we'd been discussing, I said "Well they shot and killed him, so no, he isn't coming back."
"I meant my dad," she said, which even to this day still makes me overly emotional to write it.

How much does ANYBODY want to bet that if this guy is found guilty and he gets the death penalty that we're going to, by TOTAL SURPRISE TO HIM, set him on fire and let him burn so long that he's literally swept out of existence on a gentle breeze?

What the hell are we supposed to do? Let him run amok like a bull in a china shop just b/c we're terrified that his stupid friends will plot revenge?
They'll plot revenge even if we let them go, and that's all I'm saying about it.
Eric B. never did anything TO these people and he DIDN'T have to die for what someone ELSE believed about them. He never thought that way about ANYbody but he died for it anyway.

I believe in fair trials and I DON'T approve of any torture, but I also believe in serving time in jail for a crime you committed. Even if they just serve time in jail for it, I'd be fine with that. I'm not OTOH even remotely cool with the idea of letting him go free if he IS guilty. Only if he's not.

Vicki B.

Okay, so I was incorrect about one of them. The U.S.S Cole has nothing to do with September 11, 2001 but my words above still apply to the ones who are guilty of plotting and carrying out September 11.

I'm not sure why they have this Al-Nashiri person at Guantanamo, and where was he before January 11, 2002 when Gitmo didn't exist?
BTW if you're found guilty of bombing a military ship then you should have a military trial. Just thinking out loud (as it were.)

All I know for sure is that someone assaulted me and threatened to kill me and he walked away scot-free even though he was guilty as the blackest sin in entire universes. So was the other guy, who helped him attack one person.
But BOTH of them walked away scot-free - and ONE of them even had the temerity to find where I live and bother me there. He never served any time in prison for what he did and got a "not guilty based on insufficient evidence" verdict but still came around 2 years later to bother me for even taking him to court.
I tell that as an example of people walking away free when they're guilty b/c their attorney gets them off the way an enabler helps an addicted person to their grave or insanity.
Think George Zimmerman. You'll know what I'm trying to say.

The constitution gives them the right to a fair and speedy trial, at least I THINK it's the constitution. I can't remember in detail everything that I hear, especially on a topic about which I know little to nothing. It also says a man is innocent until proven guilty. But it says nothing about making a man innocent when enough evidence contradicts the idea. At least IMO it doesn't.
My point is that whoever's representing this Al Nashiri might do the same thing with him as my attackers attorneys did, and then he could go free even if he's guilty and if he IS guilty, possibly hurt or kill someone else.

I wouldn't want that to happen. That's all I'm meaning to say.

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