July 26, 2012
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
to waterboarding, an ancient torture technique that involves controlled
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
him forward for a trial by
military commission in July 2008 and the Obama administration
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’
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.
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
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
The next day, as Carol Rosenberg described it in the
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
Andy Worthington is the author of The
Guantánamo Files: The Stories of the 774 Detainees in America’s
Illegal Prison (published by Pluto Press) and serves as policy advisor
to the Future of Freedom Foundation. Visit his website at