Guantanamo: Due Justice? – OpEd

By Diana Ray

When the alleged mastermind of the USS Cole bombing appeared for his military commissions arraignment at Guantanamo Bay on Wednesday–it was the first time he had been seen in public since his capture nine years ago in 2002. All eyes were on Abd al Rahim al Nashiri as he leisurely strolled into the courtroom wearing his white prison uniform. He was escorted by four guards — one in front, one in back, and two others on either side of him holding on to his arms as they walked him to the table where his defense counsel sat. He looked much different than his photos published in the media. He was heavier set, clean shaven and appeared surprisingly chipper. He wore no hand cuffs or shackles of any kind.

His lead defense attorney, Richard Kamman, had told press earlier that Nashiri was looking forward to this day. Nashiri, a Saudi of Yemeni descent, sat straight back in his chair and then leaned in greeting his council – all smiling like friends as they chatted.

At one point, before the hearing, Nashiri gave a thumbs up sign towards the front of the room. The hearing began about twenty minutes after 9 am Wednesday. In the back of the courtroom, members of the press, human rights activists and family members of victims observed the proceedings separated by thick glass and a forty second audio delay, so that classified information would not be released. No recordings of the hearing were allowed, but an unofficial transcript was published the following day.

Before the hearing began, Nashiri turned around and looked at the back of the room. He lifted his hand over his head in a casaual wave as he turned back around. His attorney, Richard Kammen said it was probably the biggest room Nashiri has been in in nine years. When asked if Nashiri knew victims of family members would be in the room, Kammen said yes. He also said everything Nashiri says outside the courtroom is presumptively classified so that he was unable to give Nashiri’s comments on the matter. However, he said, “this is not a person in our view without heart or feeling.” When asked if if Nahiri had anything to say about the victims’ loss, Kammen said Nashiri’s response was appropriate.

John Clodfelter from Mechanicsville, Virginia, was among the family members who were flown to Cuba for the proceeding. “He seemed cocky to me,” Clodfelter said after the hearing. His 21-year-old son, Kenneth, was killed in the attack. Clodfelter also said he believed Nashiri deserved the death penalty.

Nashiri, one of three detainees who were waterboarded by the CIA, was arraigned on charges of terrorism and murder, as well as other charges associated with the 2000 suicide attack in Yemen that killed 17 sailors and injured dozens more. He also experienced mock executions while in detention, including having a drill held to his head. Nashiri spent four years in CIA secret prisons, and was moved to Gantanamo in 2006.

He is the first detainee to face the death penalty. And he is the first detainee to begin a military commissions under the Obama adminsitration. Just two days after taking office, Presient Obama had promised to close Guantanamo and do away with military commissions.

Although Nashiri could have offered a plea at the hearing, he reserved the right and did not enter one.

Unlike civilian courts, both defense and prosecution are afforded the opportunity to question the judge in military court to decide if they want to challenge the judge’s partiality in the case. The prosecution did not have questions for the judge—Army Colonel James Pohl but Nahisri’s counsel did.

Kammen, a civilian attorney, and Nahisri’s lead learned defense counsel, said he has appeared before the Sixth, Seventh, and Ninth Circuits, as well as the United States Supreme Court, and has appeared in federal court on 30 or more occasions as learned defense counsel in death penalty cases. Nashiri is also represented by Navy Lt Commander, Stephen Reyes.

During his questioning, Kammen told Judge Pohl that al-Nashiri would like to know if Pohl thinks he is guilty. Pohl said no and added that he presumed al-Nashiri is innocent until proven guilty. When Kammen pressed the point Pohl repeated that al-Nashiri is presumed innocent and then said “of course” he does not think he is guilty.

Kammen also asked the judge if he had had any communications with the prosecution, including General Mark Martins, the Chief Prosecutor, outside of the courtroom. Pohl replied that he had not.

During Kammen’s questioning, Judge Pohl noted the difference between the military justice system and the article III system of the Geneva conventions, and said the military commissions system is” unique.“

He said that with the assistance of counsel, he would look at applicable precedents, engage in analogy, and then make a professional judgment as issues arose.

Kammen also asked if Pohl believed the United States, by having engaged in torture, had lost the moral authority to impose the death penalty. Pohl said he would not give his personal opinion.

After questioning, Kammen did not challenge Pohl as judge on the case.

Under the rules of military law, Nahsiri is due a trail date within 120 days of his arraignment, however his defense counsel waived that asking for a date one year from now. The judge granted the request, but Kammen said he doubted the case would be ready for trial even by then.

The 2009 Military Commission Act expanded the rights of the accused in military commissions, but human rights groups continue to be critical of the process, saying due justice will only be had in a US criminal courts.

A second Guantanamo Bay arraignment is expected soon for Kalid Sheik Mohammed, the self-proclaimed mastermind behind the Sept. 11, 2001 attacks. He was arraigned along with four co-defendants on capital charges at Guantanamo Bay during the Bush administration. However The Obama administration withdrew those charges hoping for a federal trial, but those proceedings collapsed. The charges were again sworn this year by military prosecutors.