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.
As with most recent hearings in al-Nashiri’s case, this one has focused on pre-trial matters that, in the world of the military commissions, take on a sense of unpredictability rarely seen in analogous federal court practice. During the first day of the hearing, the military judge, Army Colonel James Pohl, heard motions relating to the defense’s resources and personnel, to discovery and investigative matters, and to the defense’s request that Judge Pohl be disqualified from presiding over the case. Though the resource and discovery issues might seem routine, their importance is anything but. Al-Nashiri faces possible execution, and as our mainland experience proves, disparity of resources between the prosecution and defense can compromise the right to a fair trial and mean the difference between life and death.
Amidst the minor chaos of the hearing—which featured intermittent frustration by Judge Pohl at both the prosecution and the defense—a recurring theme emerged. Anthony Mattivi, one of the government’s lawyers, captured it most clearly. In response to what he perceived to be Judge Pohl’s deviation from the rules of the military commission, he pleaded that the circumstances of al-Nashiri’s case “demand more than this ad hoc approach.” Indeed they do. The problem is that the military commissions system guarantees an “ad hoc approach.”
Proponents of the military commissions point out that the most recently adopted rules look similar to the rules that apply in federal court. That’s only true if you ignore several significant caveats we’ve discussed before. But it overlooks a more fundamental problem with the commissions: even having the right rulebook (which the commissions do not) does not guarantee a fair process. Our federal courts are respected not just for their rulebooks—how many non-lawyers have heard of the Federal Rules of Criminal Procedure?—but for the centuries of precedent that inform how the rules areinterpreted and applied in practice. Thousands of judges have applied broad federal rules to nuanced facts to arrive at a subtle interpretation of our laws.
There is a tangible element of experience that breathes life into our federal rules. In the entirely new military commissions system, that experience is not just missing, its absence is intentional.
Judge Pohl appeared fully aware that the commissions rules have gaps that need filling. In addressing questions that would rarely delay a federal court, Judge Pohl groped for answers. He vacillated between drawing from his experience as a military judge and from the experience of the federal courts. But the new rules of the commissions don’t allow simple substitution.
To be sure, Judge Pohl handled a difficult hearing well. He sought compromise between the defense and prosecution when possible to avoid deciding difficult questions left unanswered by the commissions’ rules. He pressed both sides for concessions to hurry the hearing along. And he generally allowed both sides to air their grievances at length, even when he had likely made up his mind. Unfortunately, no amount of handiwork by the court can fix the foundational flaw in the commissions. It is an ad hoc system with relaxed procedural protections that have never been tested. There is no reason to think that its first flight will be a successful one, and every reason to think that the government’s latest experiment in Guantanamo will take years to complete and end only with a cloud of doubt hanging over its legacy.
Early on during today’s hearing, defense counsel Richard Kammen challenged Judge Pohl’s selection as the military judge in al-Nashiri’s case. While doing so, he asked a question that will likely haunt the commissions for years to come: “Why not get it right the first time?”