6-10-2013By Daphne Eviatar
Law and Security Program
Back in 2000, nearly a year before al Qaeda became a declared U.S. enemy and household word, a Navy guided-missile destroyer called the U.S.S. Cole was bombed while refueling in the Yemen port of Aden. Seventeen US sailors were killed and 39 injured. Al Qaeda claimed responsibility.
Thirteen years later, the alleged mastermind of that attack, a 48-year-old Saudi Arabian named Abd al Rahim al Nashiri, still has not been brought to justice. Yet the U.S. government has held him in custody for over a decade.
This week al-Nashiri is scheduled to appear in a military commission at Guantanamo Bay where the creaky wheels of justice are supposed to start turning. But if the previous commission proceedings are any guide, the process may not get very far. The last time al-Nashiri was scheduled to come to court the hearing had to be delayed because defense lawyers learned their communications had been intercepted by federal authorities, compromising what’s supposed to be a confidential attorney-client relationship. Before that, hearings were put off because al-Nashiri’s lawyers claimed he was suffering from Post-Traumatic Stress Disorder from having been tortured for years by U.S. officials while held in CIA “black sites.”
Al-Nashiri is one of only three Guantanamo detainees who the United States has publicly admitted were waterboarded as part of officially-approved “enhanced interrogation techniques.” Al-Nashiri was also stripped naked, hooded and threatened with a power drill by interrogators trying to terrify him into providing information. These tactics are presumably why al-Nashiri was never brought to trial in a civilian U.S. federal court, where evidence obtained by torture is considered inherently unreliable and inadmissible. Although such evidence is supposed to be inadmissible in the Guantanamo military commissions as well, the Military Commissions Act provides some exceptions to that rule. Al-Nashiri denies responsibility for the attacks and says his initial confessions were induced by torture and false.
It’s not clear if prosecutors will attempt to introduce tortured evidence in the military commission proceedings. And it’s not clear whether defense lawyers will be allowed to publicly produce evidence of their client’s torture in this death penalty case. Judge James Pohl, who’s also presiding over the military commission case of the alleged perpetrators of the September 11 terrorist attacks, has so far forbidden the five defendants or their lawyers from mentioning their mistreatment in court, agreeing with the government that the men’s experiences are all classified. That problem hasn’t yet been addressed in al-Nashiri’s case.
So far the al Nashiri hearings have been consumed by matters such as whether the CIA is eavesdropping on confidential attorney-client communications at the Guantanamo prison camp, the security of the computer system used by defense counsel there, and the mental health of the defendant.
In January, Judge Pohl ruled that al-Nashiri’s case was properly brought in a U.S. military commission as a war crime even though the USS Cole bombing occurred almost a year before the United States went to war against al Qaeda and long before the Guantanamo military commissions had even been created. (That ruling is now being appealed in the civilian court system.)
This week, the judge is expected to hear more arguments over determining Nashiri’s mental health; whether the charges of “conspiracy” and “terrorism” even belong in a military commission (the D.C. Circuit Court of Appeals has so far said ”conspiracy” does not); whether defense lawyers can be sure the government isn’t monitoring their confidential communications; and whether those same lawyers are allowed to bring pens, notebooks and eyeglasses into meetings with their clients without those items being confiscated as “contraband.”