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March 16, 2017

Two Steps Forward, One Step Back at the Gitmo Military Commission

By Laura Murchie

Last week I traveled to Guantanamo Bay to observe the military commission pre-trial hearings for detainee Abd al-Rahim Hussein Muhammed al-Nashiri, the alleged mastermind of the USS Cole bombing. It was the first of two weeks of pre-trial hearings, and the first time in 2017 the military commissions have made any kind of progress

Judge Vance Spath heard arguments on a variety of issues: assertions by the government that the defense had been wrongly browsing a classified government system, Secret Internet Protocol Router Network or SIPR (even though the defense team has top security clearance); whether Nashiri could be housed at the Expeditionary Legal Complex (ELC) where the courtroom is located due to his motion sickness, nausea, and headaches caused by traveling from the detention facility; whether or not an expert witness for the defense team could review medical records; and motions to compel production of medical and psychiatric records to show the damage Nashiri has suffered and continues to suffer as a result of torture by the CIA.

But despite five mostly full days of hearings, the commissions are still moving at a glacial pace. Every step of the way the government pushes back or is generally uncooperative. So the defense has to fight, in the words of defense counsel Lieutenant Commander Pollio, "tooth and nail" to get the information and resources it needs. Judge Spath is basically a parent making sure one kid (the government) is playing nice with the other.

Judge Spath even had to spend time making sure one of the defense's experts got paid. This is an issue that has nothing to do with his authority as a judge. The Convening Authority, which decides whether to refer any charges to trial and create a military commission, is supposed to deal with these kinds of funding logistics.

The tension in the courtroom was palpable. Though clearly exasperated by both sides, Judge Spath had no problem expressing his obvious frustration with the government's obstinacy and its use of bureaucratic red tape as an excuse. On the first day, Judge Spath said that "part of our national security interest [is that this case] moves forward and comes to some kind of closure...and not doing this for months and months and months..." With victims’ families observing, this theme continued to rear its head as the week went on.

The government has a history of throwing up roadblocks in this case. Before Judge Spath was assigned to the case, there was a defense motion asking the government to preserve evidence likely relating to a CIA "black site" where Nashiri was imprisoned and tortured. Judge Pohl, the original judge in the Nashiri case, initially granted the preservation motion. But the government went behind the defense's back and filed a motion asking Judge Pohl to let them destroy it anyway. Judge Pohl issued a secret order granting the government's motion. This secret order was supposed to be communicated in a timely manner to the defense team, but it wasn't, and the defense team wants to find the truth. The problem now is that the government has destroyed evidence that could allow the defense to show that the US government tortured Nashiri. If you think it sounds sketchy, you're right.

With these kinds of problems, and the array of other problems with the Guantanamo military commissions, things move slowly, if they move at all. However, Judge Spath often perpetuated the problem by letting discussions go on for hours to the point where the whole courtroom was talking in circles. Yes, some of the issues that seem trivial are actually significant. But there needs to be a balance between hearing all the issues argued zealously and having a speedy trial.

Judge Spath's reluctance to be assertive may be understandable. He is basically moving forward blindly without guideposts, and has little to no idea where his authority begins and ends. Can he issue an order on where to house Nashiri during his hearings? Can he make determinations when security protocols are at issue? No one really knows because unlike U.S. federal courts, which have decades of precedent, the Guantanamo military commissions are a makeshift contraption.

The hearings will continue, but at a pace that is generally two steps forward and one step back. We can hope that government lawyers  will be more cooperative now that they have been called out for failing to play fair. In fact, at one point, prosecutor Colonel Wells even acknowledged that they weren’t following the rules. But ultimately, the parties are in a pseudo-stalemate because they're forced to work in a failed system.

The hope is to begin trial for Nashiri in 2018; past practice suggests that’s wishful thinking.