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February 20, 2014

Al-Nashiri Case Resumes at Guantanamo

After a two-day delay, pre-trial hearings resumed Wednesday morning in the case of the alleged USS Cole bombing mastermind Abd al-Rahim al-Nashiri at Guantanamo. The proceedings had been delayed because al-Nashiri’s decided that he no longer had confidence in his civilian counsel, Richard Kammen, an issue that was apparently resolved over the break, meaning the proceedings could continue without further significant delay. These hearings, for a crime that was committed more than 13 years ago, have suffered endless delays and complications as part of the military commission system at Guantanamo.

Hot on the docket Wednesday was a motion filed pursuant to a section of the National Defense Authorization Act passed by Congress in December. The statute mandated that the chief military defense counsel and chief war crimes prosecutor be of equal rank in military commission trials, unless the secretary of defense issued a waiver. Observers learned today that a waiver had indeed been signed by Secretary Hagel and was produced to counsel in the past few days. The waiver, valid for 180 days, means Chief Prosecutor General Mark Martins will continue to outrank his defense counterpart, a colonel. Apparently, in this case, Congress’s step to improve fairness in the proceedings will have to wait for another day.

Another interesting exchange involved whether the commission judge, Colonel James Pohl, has the subpoena power to compel U.S. citizen witnesses to appear before the Guantanamo Bay court since it is outside the U.S. mainland. Debunked CIA torturer-in-chief Jose Rodriguez’s book from 2012 contains an account of al-Nashiri’s role in the USS Cole bombing that apparently diverges from that of the prosecution.  Rodriguez was in charge of CIA “black sites” where al-Nashiri was held after his capture in the United Arab Emirates in 2002 and allegedly tortured. Defense counsel presumably wishes to call Rodriguez to the stand to give an explanation of why his characterization of al-Nashiri does not match the “mastermind” label often use to describe his role in the attack.

Later in the afternoon, debate turned to the process by which members of the military commission, who are military officers from all branches of the military serving as jurors, are empaneled. Defense counsel argued the inherent structural nature of the convening authority, as a military body that both refers the charges against the accused and selects the pool of potential members, compromises the impartiality of the convening authority and proceedings. It isn’t hard to see, even to the casual observer, the conflict of interest.

The poor architecture of the military commissions, both structural and legal, continues to stymie justice for the victims of the attack. There have been several reboots of these trials during the 13 years that have passed since the attack and justice has been delayed far too long.

Thursday, there will be a classified session in the afternoon and another detainee, Ahmed Muhammed Haza al-Darbi, will be arraigned at Gitmo in a separate but related case, the bombing of the French oil tanker MV Limburg. Al-Nashiri is accused of masterminding that attack as well. We understand that al-Darbi will enter into a plea deal in that case.

Motions will continue in the al-Nashiri case on Friday morning and we’ll continue observing from Gitmo and Ft. Meade.