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April 24, 2014

More Gambling with Justice at Guantanamo

Pretrial hearings in the case against alleged USS Cole bombing mastermind Abd al Rahim al Nashiri continue to limp along—par for the course in Gitmo’s troubled military commission system—but they recently took an interesting turn.

Last week news broke that the judge, Colonel James Pohl, had granted a motion to order the CIA to provide a timeline of Nashiri’s detention in co-called “black sites” after his arrest in Dubai in 2002. While there’s no word yet on whether the CIA will comply with the order, it set a dramatic backdrop for the proceedings this week. Nashiri, who was waterboarded by the CIA during his captivity, is facing the death penalty for his role in the attack on the USS Cole and a French oil tanker Limburg over 13 years ago.

As if the commissions needed more confusion, the case against Khalid Sheik Mohammed and his alleged 9/11 co-conspirators came to a halt last week after the court learned that the FBI had been in contact with a member of one of the defense teams in the course of investigation, the purpose of which is unclear. Although it appears the Nashiri defense team has not been contacted by the FBI, civilian defense counsel Richard Kammen stated on Tuesday that they would be filing an emergency motion to look into the matter.

Frequent military commissions observers won’t be surprised if there is another delay; the case has been in pre-trial hearings since 2011 and it is unlikely that the trial will begin in December, as was planned.

The hearings are set to touch on a wide variety of procedural matters. As of Wednesday evening, the court had heard roughly 20 motions before heading into a classified session. A highlight from the first two days included a defense motion to have Judge Pohl recuse himself from the case due to lack of impartiality.  The defense cited a letter obtained through a FOIA request in which former Convening Authority—Vice Admiral Bruce MacDonald, the person responsible for referring the charges against Nashiri—praised Pohl and stated he would be “crucial” in renewing the military commissions process.  Judge Pohl denied the motion to recuse himself from the case.

The court also heard arguments over rules of discovery and evidence, which are constantly being re-crafted and revised leading to confusion for all. Disagreement over rules as basic as these is virtually unheard of in federal court. As military defense counsel Commander Brian Mizer said of the challenges presented by this case, “this is something exotic to military justice.”

These are some of the most complex terrorism cases ever tried. If the goal is justice for the victims and families of the USS Cole, Americans shouldn't put our trust in the shaky military commissions. Out of the eight convictions in the Guantanamo military commissions, two have been recently overturned on appeal. U.S federal courts handle these kinds of cases all the time and have managed to convict over 500 of international terrorism charges since 9/11. The country can do better.

With more scheduled for this week and next, we’ll be continuing to monitor the proceedings from Fort Meade in Maryland.