A millionaire Saudi businessman, Abd al-Rahim al-Nashiri, is accused of being the brains behind the terrorist attack on the USS Cole off the coast of Yemen in 2000, in which 17 U.S. soldiers died. He is also a victim of the notorious torture program initiated by the Bush administration after the 9/11 attacks. No less a source than the CIA Inspector General noted in a report in 2004 (PDF) on the “high-value detainee” interrogation program that while he was held in a secret facility in Thailand after his capture in the United Arab Emirates in the fall of 2002, he was hooded and restrained and threatened with a gun and a power drill to scare him into talking, even though the federal torture statute prohibits threatening prisoners with imminent death. Moreover, in February 2008, CIA director Michael Hayden admitted that al-Nashiri was one of three prisoners subjected to waterboarding, an ancient torture technique that involves controlled drowning.
In Poland, where al-Nashiri was moved after Thailand in December 2002, he has been recognized by a prosecutor investigating the CIA’s secret prison on Polish soil as a “victim.” But in the United States, since his transfer to Guantánamo in September 2006, he has been silenced, like the other 13 “high-value detainees” transferred with him, even though the Bush administration put him forward for a trial by military commission in July 2008 and the Obama administration followed suit in November 2009.
Prosecuting a man whose torture is public knowledge while trying to prevent him from mentioning his torture might seem like a lost cause, but the U.S. authorities have a long history of denying reality when it comes to the “war on terror.” So last week, eight months after al-Nashiri was arraigned, and three months after his last pre-trial hearing, his case once more came up before Army Col. James Pohl, the military commissions’ chief judge. According to the AP, he dismissed all objections filed by the defense that he “could not be impartial because he had a financial incentive to side with the Pentagon, which paid his salary, and he was serving as the judge in other Guantánamo cases,” having chosen to preside over the cases of all the former CIA prisoners.
As the Miami Herald explained, al-Nashiri’s lawyers spent the rest of the first day asking the judge to “fund several consultants and additional legal staff for the death-penalty case — from a memory expert to one on handling national security evidence,” requests on which Colonel Pohl did not immediately rule.
Al-Nashiri’s lawyers also tried to replace Colonel Pohl with either “an active-duty military judge whose contract is not up for annual review by the Department of the Army” or “a variety of judges.” Colonel Pohl has a 32-year career in the Army with 12 years presiding over courts martial. Nevertheless defense attorney Richard Kammen, a criminal defense attorney from Indianapolis, argued that the novelty of the military commissions, which deal with “completely unknown, untested, unheard issues,” would benefit from having different judges.
When Kammen tried to dismiss Colonel Pohl’s defense of the “process” at Guantánamo by pointing out that the Spanish Inquisition and the Soviet show trials were a “process” too, Colonel Pohl took exception. “Mr. Kammen, this process was set up by the United States Congress and set up by the president of the United States,” he said.
On day two, there was a 90-minute closed session involving Colonel Pohl and the lawyers — but not al-Nashiri himself — to discuss the government’s ongoing attempts to block all mention by his lawyers about his torture, and whether that should make certain evidence inadmissible.
Al-Nashiri’s Pentagon-appointed defense lawyer, Navy Lt. Comdr. Stephen Reyes, had argued that his client had a right to attend Wednesday’s closed session, although Justice Department attorney Joanna Baltes had stated that the session would involve classified information — even though, of course, that classified information relates to al-Nashiri himself. The chief prosecutor, Army Brig. Gen. Mark Martins, confirmed, absurdly, that al-Nashiri “does not have a clearance” to hear evidence in his own case, as the Miami Herald explained.
At issue were two defense motions seeking discovery. The motions were kept under seal, but it was clear that al-Nashiri’s lawyers were endeavoring to get the government to turn over information about their client’s capture and treatment during the four years he spent in secret CIA prisons before his transfer to Guantánamo.
Inconclusively, General Martins refused to provide a detailed explanation of what had happened in the closed session, saying only that defense lawyers had “agreed to postpone court arguments on the two sealed motions” until a future hearing.
Seeking to pierce the secrecy without crossing any of the lines erected by the government, Kammen explained that the military commission rules and what he described as “the government’s illegal overclassification” of information relating to the case meant that the lawyers had to argue their motion in the closed session. He also explained that, although the commissions were revised under Barack Obama, and were alleged to be fairer for the accused, “When you get past some of the superficial stuff, nothing has really changed since 2006.”
The defense lawyers, he explained, continue to seek more resources, as they did under George W. Bush, and they also “dispute the government’s rules of classification surrounding the former CIA captives,” as the Miami Herald put it. “And in that sense,” Kammen added, “the system is not any more open, transparent, or fair.”
General Martins tried to defend the secrecy by stating, “This is an adversarial process. It is as open and transparent as we can make it.” He added that “national security and the rules compelled secrecy for the hearing.”
Even so, it is difficult to see how the case can move forward when the impasse is such that the defense team needs to push for the release of information relating to al-Nashiri’s capture and treatment in secret CIA prisons, whereas the government is dedicated to preserving a wall of silence.
Such is the stalemate that, on day two, al-Nashiri chose not even to visit the court, where he would only have spent the day in a holding cell. On day three also he decided to stay put. As Kammen described it, he “voluntarily chose not to attend,” but, in a vivid demonstration of the overclassification that prevails for the “high-value detainees,” he pointed out, according to the Miami Herald, that “he was barred from elaborating by the intelligence agencies’ security rules governing the ‘presumptive classification’ of anything an ex-CIA captive says.”
With an empty chair for the accused — always a poor sign at a trial — the lawyers argued for the case to be dismissed, or, alternatively, for it to be televised. Colonel Pohl made no decisions, and it will now be another three months — until October 23–25 — before anything more will be heard.
The next day, as Carol Rosenberg described it in the Miami Herald, “the Guantánamo war crimes court went dark for the month of Ramadan.” Next up, on August 22, will be further hearings in the cases of Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks. Nevertheless, it is surely appropriate to ask, ten and a half years after Guantánamo opened, and nearly six years after the “high-value detainees” arrived from secret prisons, to be silenced first by George W. Bush and then by Barack Obama, whether it would not be more appropriate to consider that justice itself has been switched off at Guantánamo and may never be found again.
