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February 25, 2014

Nashiri Guantanamo Trial Drags On

When even the military commission judge hearing both the 9/11 case and the USS Cole/MV Limburg bombing case at Guantanamo is frustrated with their pace and location, it might be time to rethink some things about these trials. Yesterday, at the latest pretrial hearing in the case of Abd al-Rahim al-Nashiri, the alleged mastermind of the USS Cole and Limburg bombings, Judge Colonel James Pohl told the court, “I wish this could be done quicker. I wish we could do this in Washington, DC.” He’s not alone.

Some of the motions argued yesterday in al-Nashiri's hearing revolved around whether or not the bombing of the French oil tanker the MV Limburg was a war crime. In October 2002, the Limburg was in the port of Yemen carrying Iranian oil under a Malaysian contract. The sole crew member killed was Bulgarian. The U.S. government alleges that al-Nashiri orchestrated the attack, and that this constitutes war crimes (which Marty Lederman questions over at Just Security). The military commissions themselves only have jurisdiction over war crimes, and you can only have war crimes in a war. If the Limburg attack was a war crime, these charges against al-Nashiri could be brought only if the U.S. was a party to that war, and if not, the Military Commission Act (the legislation creating the military commissions) would have to cover persons involved in a war that the U.S. is not a party to.

This is one of the more novel issues being argued. As with most other military commission hearings at Guantanamo, the discussion today also involved the issue of over-classification of evidence. Much of the material in al-Nashiri's case is classified (including information about how he was tortured by the CIA), and much of it, al-Nashiri is not allowed to see. His attorneys argue that this prevents them from providing an adequate defense, because they cannot share with him everything he may need to respond to during his trial. They say that this should prevent the case from being a death penalty case.

The defense also argued that the case should be moved from Guantanamo to Norfolk, Virginia, where the USS Cole is stationed, and closer to where most witnesses and attorneys live. As it stands, the defense attorneys, the prosecution, the judge, the media, observers, and victims' family members fly down to Guantanamo Bay for each hearing on expensive chartered flights (one estimate placing the cost at $90,000 per flight). Where a trial in the United States would be able to continue with minimal delay, the trials at Guantanamo drag on and on, beset by endless complications for everyone involved.

It's easy to see why Judge Pohl is so frustrated. The system he presides over is by its nature painfully slow. It's a mish-mash of federal court and court marshal proceedings, where no one is sure of the rules, and even simply to attend is a labor.

The Bush Administration created the Guantanamo military commissions in order to hand out rubber stamp convictions, and now under President Obama, they continue in their third version, having been ruled unconstitutional twice (this third version has not been evaluated by the Supreme Court). In U.S. Federal courts on the other hand, terrorism cases are tried routinely without incident, the courts dealing relatively smoothly with all the issues that the Guantanamo military commissions address in halting fits.

The next pretrial hearings in al-Nashiri's case are scheduled for the second half of April. His trial is scheduled to start in September.