Guantánamo Bay and Abd al Rahim al Nashiri

My Week at Guantánamo’s War Court

Last time, Church described his flight to Guantánamo and some first impressions at the base. Now, in the final segment of his e-book, “My Week at Guantánamo’s War Court,” to be published by this newspaper, he writes of why Guantánamo was chosen as our primary facility for detaining and interrogating captives in the “War on Terrorism,” and provides details on the three attacks claimed to have been captained by Nashiri.

Part III

The Guantánamo Bay detention facility is a toxic place, at least for those who know its recent history. It was chosen for the post-9/11 interrogation, torture and detention of prisoners who were called “the worst of the worst” by Donald Rumsfeld in 2002 when in truth only a few dozen of the captives might have fit that description. Many held by the U.S. were innocent, and imprisoned for no defensible security concern. About 90 percent of the detainees were not even captured by U.S. or coalition forces; most were handed over by Pakistani or other authorities listed as “not stated” when the U.S. was offering rewards for terrorism suspects. In other words, they were delivered in exchange for bounties. Who knows how many of those deals were transacted by warlords seeking to rid themselves of troublesome rivals, or because of ancient, tribal grudges?

The choice of Guantánamo was no accident. President George W. Bush’s lawyers calculated that, since the facility was not part of the sovereign United States, our courts would have no jurisdiction over the mayhem they were dreaming up. And Bush’s lawyers would cobble together what The Constitution Project called “novel, if not acrobatic” legal opinions arguing that the regime of laws and treaties prohibiting torture did not apply to our treatment, or mistreatment, of prisoners. Guantánamo, then, would be a lawless zone for detainees.

That is, until 2004, when the Supreme Court decided that, while indeed the Guantánamo facility did not fall within our nation’s sovereign territory, its captives nonetheless have the right to challenge the legality of their detentions by filing habeas corpus petitions in our federal courts. The Court said this was due to the U.S.’s permanent leasehold for the naval base over which it exercises plenary and exclusive jurisdiction. Of the 759 detainees acknowledged to have been held at Guantánamo when President Barack Obama took office, about 245 remained. Obama, attempting to close Guantánamo despite all roadblocks, has continued drawing the number down. As of October 2013, 166 people remained, most having been there for nearly 12 years.

At the time of my visit, just six prisoners in two high-profile cases had regularly scheduled proceedings before military commissions convened at Guantánamo. Five, including the notorious Khalid Sheikh Muhammad (KSM), are being prosecuted together for offenses relating to the 9/11 attacks. According to the charges filed against him, Nashiri (pronounced NASHiri, by most) planned and directed the Oct. 12, 2000, strike on the destroyer USS Cole in Aden Harbor in Yemen, where the ship was tied up for fueling. A launch laden with explosives, manned by Arabs in civilian garb making friendly gestures, drew alongside, and then the explosives were detonated, blowing a huge hole in the ship’s side. Seventeen sailors were killed, and dozens more were wounded. Chief Prosecutor Brigadier General Mark Martins, when arguing before military commission Judge Colonel James L. Pohl that the “terrorism” charge against Nashiri falls in the “sweet spot” of the crime long defined by international law of war principles, claimed that al Qaeda’s people videotaped the devastation and circulated it widely in order to strike fear into a civilian population or change governmental policy.

USS Cole after the attack

Another charge claims that, earlier in 2000, Nashiri set up an unsuccessful assault on the USS Sullivan, from the Madinat Al-Shaab beach area in Aden Harbor, with a boat so packed with explosives that it swamped soon after launching.

Finally, Nashiri allegedly directed a different attack in 2002 near the port of Al Mukallah, Yemen, in which suicide bombers used an explosives-laden boat to attack the French supertanker MV Limburg, blasting a hole through its hull. One crew member died, about 12 others were injured and around 90,000 barrels of oil spilled into the Gulf of Aden.

Various crimes under the Military Commissions Act of 2009 (2009 MCA) are alleged for the three events.

The current prosecution of Nashiri, his second, had been delayed for years following his transfer to Guantánamo in 2006. Charges were filed initially on June 30, 2008, under the Military Commissions Act of 2006 (2006 MCA), the attempt by Congress to provide legality for the commissions found so plainly lacking in Bush’s military order by the Supreme Court’s Hamdan v. Rumsfeld decision, only to be superseded by more comprehensive charges on December 12, 2008.

On Feb. 5, 2009, Susan J. Crawford, the Convening Authority (CA) for the military commissions, withdrew “without prejudice” all charges against Nashiri “in the best interests of justice.” (“Without prejudice” means that new charges based on the same conduct could be brought in the future.)

President Obama, immediately after taking office in January, 2009, had ordered a halt to all military commission proceedings to provide time to review the commission process generally and the pending cases specifically. As noted, the first Nashiri prosecution was dismissed soon thereafter, while the ability was preserved to prefer charges in the future. After a two-year period during which Obama had barred the filing of new military charges against Guantánamo detainees, the president permitted the military trials to resume under revamped procedures in the 2009 MCA.

While the president remained committed to closing Guantánamo and to charging some terrorism suspects in civilian criminal courts, Congress had blocked the transfer of Guantánamo prisoners to the U.S. for trial, so federal courts were not then an option. Nashiri was among the detainees believed most likely to be tried by military commission.

New charges sworn against Nashiri were filed on Sept. 15, 2011. Pretrial proceedings began soon after, and they will not be completed anytime soon. In August 2013, Judge Pohl set a provisional trial date for Sept. 2, 2014, and early in March 2014, he adjourned that to Dec. 4, 2014.

If the new timetable holds, the Nashiri case will be the first death penalty case tried by Guantánamo’s military commissions. Chief defense counsel Richard Kammen told our group privately that early 2015 was a likely date.

Copyright © 2014 by Charles R. Church

For those wishing to read more of Church’s e-book, please go to the Amazon Kindle store.

Charles R. Church is an attorney practicing in Salisbury who focuses primarily on Guantánamo Bay, detention, torture, habeas corpus and related issues.