Earlier this month, in a Guantánamo Bay courtroom, Abd al-Rahim al-Nashiri appeared for the first time since his capture in 2002 in the United Arab Emirates. Accused of orchestrating the 2000 bombing of the U.S.S. Cole, which killed 17 sailors and injured hundreds more, al-Nashiri was arraigned on a litany of charges, including murder in violation of the laws of war and conspiracy to commit acts of terrorism. The U.S. government is seeking the death penalty.
The proceedings bore little resemblance to a traditional criminal arraignment — usually a 5–10 minute hearing. As an initial matter, all of the primary participants (except al-Nashiri himself) had to be flown to Guantánamo for the proceedings. The prosecutors, the defense attorneys, the presiding judge, the media, trial observers from non-governmental organizations (including myself), and members of the families of some of those killed or injured in the U.S.S. Cole bombing all arrived two days in advance of the hearing.
Providing access to observers — a larger group than has been invited to observe hearings in the past — is one element of a recent government effort to increase the transparency of military commission proceedings. The effort has had varied success. To be sure, broader access to the hearings, as well as improvements in working conditions for observers who do make the trip to Guantánamo, are steps in the right direction. Another step in the direction of transparency is the closed circuit television feed that broadcast the hearing at an Army base in Ft. Meade. Although access to this broadcast was limited and it was set up at the last minute, it did permit U.S. media entities unable to send a representative to Guantánamo to observe as well. Yet documents filed in the proceedings are not always available online as quickly as observers might hope, and all aspects of detention camp operations remain shrouded in secrecy, even to those who are present on the Naval base.
Al-Nashiri himself seemed relaxed and exhibited what seemed to be a certain amount of smugness. Sitting unshackled in his white prison uniform, he was engaged with the judge and with his attorneys, and appeared curious about his surroundings. At one point, he turned to the observers sitting behind soundproof glass at the back of the courtroom and waved — an acknowledgement, according to the lead defense attorney Rick Kammen, of being in a space so much larger than any other he had seen since his capture nearly a decade ago. At least one family member of one of the victims, however, found the gesture more sinister. He saw in it an echo of the U.S.S. Cole bombers’ waves to get their victims’ attention before detonating themselves and blasting a hole in the hull of the ship.
The proceedings themselves — lasting more than four hours — addressed a number of issues, only some of which were resolved. First, al-Nashiri confirmed that he wanted to keep his current legal team. In contrast with some other detainees at the Naval base, al-Nashiri seems to have a strong rapport with, and faith in, his attorneys — led by Kammen, an experienced death penalty defense attorney from Indianapolis. He interacted with them before and after the hearing and sought their advice in responding to some of the judge’s questions. When the judge asked al-Nashiri whether he wanted any other counsel, al-Nashiri replied that his current team is “doing the right job.”
Second, in a definitive ruling in the defense’s favor, Judge Pohl issued an order barring Guantánamo staff from reading communications to al-Nashiri from his attorneys labeled as privileged attorney-client communications. For the past several weeks, al-Nashiri’s mail — even mail marked as privileged — had been subject to examination to confirm that the communication directly related to his case. Defense counsel was concerned that information communicated to al-Nashiri in confidence might find its way to Office of Military Commissions or prosecution personnel. It’s a fear that seems reasonable. According to Staff Judge Advocate Commander Thomas J. Welsh’s testimony, at least one linguist brought in to read correspondence written in Arabic was a so-called “J2” — a member of the detention center’s staff who works in intelligence. Employing intelligence personnel to examine al-Nashiri’s legal mail would seem to be overkill if the sole purpose of the review were to confirm that the mail is correctly labeled as privileged. At a minimum, it raises questions with respect to what might happen to other information gleaned from the review.
One issue to watch as the proceedings progress is the impact of the U.S.’s indefinite detention program. The defense sought acknowledgment from the government that, if acquitted, al-Nashiri would remain detained under the AUMF, which (according to the U.S. courts) allows the detention of anyone who is “part of” al Qaeda as a fundamental incident of war. While the government refused to confirm this proposition, it seems clear that the government would in fact continue to detain al-Nashiri under the AUMF even if he were acquitted of committing war crimes — at least in the present circumstances, with Congress effectively blocking any release option. According to the defense, this fact may impact several stages of the proceedings. For example, if al-Nashiri will not be released, perhaps it is safe to provide him more access to information than he would otherwise be entitled to. It could also affect relevant criteria for jurors as well as the instructions they are given. Jurors who perceive al-Nashiri as a dangerous wartime enemy might be reluctant to acquit him, even if they do not believe him to be guilty beyond a reasonable doubt of the specific charges against him, if they believe that acquittal would mean release. The information about al-Nashiri’s eligibility for continued detention could thus affect their verdict.
Perhaps the most surprising issue to arise in the hearing was the lack of clarity on the judge’s powers vis-à-vis those of the Convening Authority, the individual appointed by the Defense Department to oversee various aspects of the military-commissions proceedings and to supervise the Office of Military Commissions. Military commission rules require the defense to procure approval for any expert assistance it wishes to engage. Defense attorneys sought permission from the judge to file any requests for such approval in camera and ex parte, so as to avoid broadcasting their trial strategy to the prosecution — a procedure followed as a matter of course in federal court. The parties, however, were uncertain about whether the judge has the power to order the Convening Authority to accept filings in this manner. Exemplifying the untested nature of the military commission proceedings, even Judge Pohl had no answer. The incident thus represents one of many questions at issue at al-Nashiri’s arraignment — such as the question of whether government officials can read a detainee’s legal mail — that would not arise in federal court or a court martial, but that might need to be litigated as part of al-Nashiri’s military commission.
Finally, it is not clear when the trial will begin. The judge set a tentative trial date for November 2012, but defense attorneys acknowledge that is a highly ambitious schedule. Likely, it will be two or three years before the parties are ready to go to trial. In the meantime, all of the unresolved issues that arose last week will need to be addressed, as well as the many others that are certain to emerge. The government should soon begin to provide the defendant with discovery material — anticipated to number in the hundreds of thousands of pages. The unresolved issues mentioned above, as well as any disputes arising in the discovery phase of the trial, will be the subject of a tentatively scheduled hearing in January 2012. That hearing, as well as the rest of the proceedings in the case, likely will be available on the U.S. mainland via CCTV — though the matters of where that broadcast will be and who will be eligible to attend are, like so many other things in this case, as yet undetermined.