Sins of Commission
After nine years, the alleged al Qaeda mastermind of the USS Cole bombing is finally getting his day in court. But does anyone still think a military commission at Gitmo is a fair trial?
GUANTÁNAMO BAY, Cuba – Escorted by no fewer than nine guards, but free of handcuffs and shackles, Abd al-Rahim al-Nashiri, on Wednesday, Nov. 9, made his first public appearance since he disappeared into a CIA "black site" in 2002. The guards sat Nashiri, dressed in white prison garb and looking much older and heavier than his one public picture shows, at the front of the bright, air-conditioned, hangar-like courtroom at Guantánamo Bay. The few journalists, observers, and victims allowed on the U.S. naval base to view the proceedings were separated from them by thick, bulletproof glass. Nashiri seemed surprised by all the attention; he looked around and then turned and waved. His lawyer later explained he was just glad to be out of the 8-by-12-foot cell he has lived in for the past nine years.
Nashiri, a Saudi of Yemeni descent, faces charges of murder and attempted murder in violation of the laws of war for allegedly planning and participating in the attack on the destroyer USS Cole on Oct. 12, 2000, which killed 17 U.S. servicemen; the failed attack on the destroyer USS The Sullivans on Jan. 3, 2000; and the attack on the French supertanker MV Limburg on Oct. 6, 2002.
Nine years after being apprehended in the United Arab Emirates, Nashiri is finally getting his day in court. The arraignment on Wednesday marks the beginning of the first death penalty case to be heard in the military commissions. But will this finally be justice?
Aside from Nashiri’s long pretrial detention, the case and the court have been plagued with problems from the start. To begin with, the main charges against Nashiri for "war crimes" stem from events that took place in Yemen in 2000, long before any recognized armed conflict between the United States and al Qaeda. This calls into question whether the military commissions, created under U.S. law specifically to try war crimes, even have authority to prosecute the case.
Then there’s the issue of Nashiri’s torture in U.S. custody. Held in a secret CIA black site for four years, Nashiri is one of three people George W. Bush’s administration admitted to waterboarding — a form of mock execution by inducing near suffocation long considered torture under U.S. and international law. He was also, among other things, threatened with a gun and, later, with a revving power drill held near his head while he was hooded but otherwise naked. The CIA actually recorded some of Nashiri’s waterboarding, as well as the ill-treatment of other detainees, but in 2005 destroyed the tapes, allegedly for national security reasons. Normally, the intentional destruction of evidence by the state in a criminal case would be grounds for serious sanction. But Barack Obama’s administration announced last year — just before the statute of limitations was about to run out — that no one would be held accountable.
Nashiri supposedly confessed to many things during these interrogations, including his involvement in the Cole and Limburg bombings. He also allegedly said that Osama bin Laden had a nuclear bomb. He has since proclaimed his innocence and recanted those confessions, saying he only made them in a desperate attempt to appease his torturers.
It’s unclear how much information gleaned from Nashiri during these interrogations, as well as from other detainees abused during the Bush administration, will be deemed admissible, but rules on the use of this evidence are looser in the U.S. military commissions than in federal court. Commission rules, revamped under Obama, bar the use of statements from the accused obtained by torture, but evidence derived from other types of coercion may be admitted in certain circumstances. In federal court, any evidence derived from coercion would be barred — absent a showing that it would have been discovered in another lawful way.
Also unlike in federal court, multiple levels of hearsay are admissible, denying a defendant any genuine right to confront witnesses against him. That means prosecutors don’t have to produce witnesses and can wait years to prosecute someone, as they did with Nashiri. It also allows prosecutors to launder evidence obtained by torture; the prosecutors need only submit a written summary of the interrogation — not offer the interrogator, in person, as a witness.
In fact, Nashiri’s lawyers are constantly fighting battles unimaginable in federal court. A week before the arraignment they made a motion, large chunks of which were kept from the public record, asking the court to stop military personnel from reading privileged attorney-client mail and other communications. Another motion asked that the defense be permitted to present requests for funds for investigators and experts, ex parte — meaning just to the judge, not to the prosecution as well. Otherwise, they argued, they would be forced to reveal theories of their case and privileged attorney-client information to their adversaries. Such ex parte requests are routinely granted in federal court; two similar requests to the military commission have already been denied.
On Wednesday, the judge agreed with the defense on one motion, at least, ordering military personnel — apparently including intelligence officers — to stop reading Nashiri’s privileged communications. The judge deferred a decision on ex parte defense resources.
These issues give the court the appearance of a second-class justice system, tailored to circumvent standard protections afforded defendants in U.S. courts. Pair this with the commission’s more chronic problems, and it amounts to a seriously substandard system of justice. "Fundamentally flawed" is how Martin Scheinin, U.N. special rapporteur on the protection of human rights and fundamental freedoms while countering terrorism, described the Military Commissions Act. "It is very far from international fair trial standards and probably cannot be fixed."
The commissions also lack independence (the Defense Department handpicks judges and jurors) and have virtually no legal experience or precedent. Additionally, their processes are removed from public scrutiny and most journalists, taking place in a remote location.
They are also literally making up the rules as they go along. Just two days before Nashiri’s arraignment, Defense Secretary Leon Panetta issued a 202-page document of revised military commission regulations. While trying to prepare for the start of their case, lawyers were forced to pore over the document, trying to figure out what was new and what had changed.
The fact that prosecutors are seeking the death penalty only compounds these deficiencies and increases the likelihood that any verdict will be vulnerable to challenge on appeal. U.S. appellate courts normally scrutinize death penalty cases to a much higher degree than life sentences.
When so much is at stake, why risk using the military commissions when the tried-and-tested U.S. federal court system is available? "Where our counterterrorism professionals believe trying a suspected terrorist in our reformed military commissions would best protect the full range of U.S. security interests and the safety of the American people, we will not hesitate to utilize them to try such individuals," said John Brennan, the president’s senior counterterrorism advisor. Yet at the same time, the administration has supported the use of federal courts for other terrorism defendants, suggesting that those trials do not pose any risk to national security.
But the victims of the Cole and Limburg deserve to see the person accused of committing those crimes prosecuted in a fair system, with a verdict that will not be overturned on appeal.
Since the military commissions at Guantánamo were created in 2001, they have completed just six cases. The much-derided federal courts, with over 200 years of precedent and an independent, experienced judiciary, have prosecuted more than 400 terrorism cases since Sept. 11, 2001. For all the talk that the federal courts are not up to the task and that core elements of national security would be at risk, the system has prosecuted many people accused of serious terrorism-related offenses: Umar Farouk Abdulmutallab, the so-called "underwear bomber," who pleaded guilty last month and faces multiple mandatory life sentences; Faisal Shahzad, the "Times Square bomber"; and the 9/11 co-conspirator Zacarias Moussaoui. Both Shahzad and Moussaoui are serving life sentences without the possibility of parole.
Even those accused of the worst crimes deserve trial in a fair system. The principles at stake here have guided the United States for years — the right to be free from torture, the right to confront one’s witnesses, and the right to an adequate defense. At a time when new democracies in other countries are building their own systems of justice, the long, plodding, and constitutionally murky U.S. military commissions system at Guantánamo is not the example the United States should want to set.