A millionaire Saudi businessman accused of being the brains behind the terrorist attack on the USS Cole off the coast of Yemen in 2000, in which 17 US soldiers died, Abd al-Rahim al-Nashiri is also a notorious victim of the 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 on the “high-value detainee” interrogation program (PDF) that — while held in a secret facility in Poland after his capture in the United Arab Emirates in the fall of 2002 and his initial imprisonment in a CIA “black site” in Thailand — he was threatened with a gun and a power drill, while hooded and restrained, to scare him into talking, even though the federal torture statute prohibits threatening prisoners with imminent death. Moreover, in February 2008, then-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 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 US, 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 US authorities have a long history of denying reality when it comes to the “war on terror,” and so two weeks ago, eight months after he was arraigned, and three months after his last pre-trial hearing, al-Nashiri’s case once more came up before Army Col. James Pohl, the military commissions’ chief judge, who first of all dismissed objections, filed by the defense, that, as the Associated Press described it, 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 he did not immediately rule.
His lawyers also tried to replace Col. 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.” Col. Pohl has a 32-year career in the Army, with 12 years presiding over courts martials, but 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 Col. Pohl’s defense of the “process” at Guantánamo, by pointing out that the Spanish inquisition and the Soviet show trials were a “process” too, Col. 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 2, there was a 90-minute closed session, involving Col. Pohl and the lawyers, but not al-Nashiri himself, to discuss the ongoing attempts to block all mention by his lawyers about his torture, and whether that should make certain evidence inadmissible.
His Pentagon-appointed defense lawyer, Navy Lt. Cmdr. 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, Brig. Gen. 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, Richard Kammen explained that the military commission rules, plus what he described as “the government’s illegal over-classification” 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 President Obama, and were allegedly 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 President 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,” as Kammen added, “the system is not any more open, transparent or fair.”
Brig. Gen. Martins tried to defend the secrecy, 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.”
Nevertheless, 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 2, al-Nashiri chose not even to visit the court, where he would only have spent the day in a holding cell, and on Day 3 he also decided to stay put. As Richard Kammen described it, he “voluntarily chose not to attend,” but, in a vivid demonstration of the over-classification that prevails for the “high-value detainees,” he pointed out, as the Miami Herald described it, 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. Col. 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, but 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.
Note: The courtroom sketch at the top of this article is by Janet Hamlin, and is reproduced courtesy of Janet Hamlin Illustration.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed — and I can also be found on Facebook, Twitter, Digg, Flickr (my photos) and YouTube. Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.
On Facebook, Jan Strain wrote:
And we hit the Front Page on Digg tonight, my friend
Thanks, Jan. Let’s hope the same will continue to happen when Digg relaunches on Wednesday!
Thanks for all your important efforts Andy.
With regard to the efforts of the DoD to prevent any testimony about the torture and other “extended interrogation techniques” used against the Military Commission suspects — I am reminded of a classic series of Doonesbury comics, that date back to the Nixon’s “secret” bombing of Cambodia. He has one of his recurring characters, an intrepid but clueless war reporter, who has travelled to Cambodia to investigate the “secret” bombing. He interviews several local Cambodians, who assure him the bombing was no secret to them.
Similarly, while the DoD spin-doctors claim that all the information about torture has to be kept secret to protect “national security”, by withholding the techniques the USA used from dangerous jihadist radicals who hadn’t been captured yet, I think the public record is clear. The torture testimony is being suppressed to keep it from tarnishing the reputation of the CIA and the US military with the US public.
As I think you have mentioned before, Ibrahim al Ziedan’s testimony at his 2004 CSR Tribunal establishes that interrogators made no attempt to withhold the details of their torture program from the Guantanamo captives.
Years before the rest of the world knew that Abu Zubaydah’s torture was recorded “for training purposes” interrogators bragged about the torture of Abu Zubaydah to the individuals they were interrogating. Al Ziedan testified that some captives were shown images from those training videos.
I think it is worth noting that Guantanamo captives, like Al Ziedan, were well aware of the recording of Abu Zubaydah’s for training purposes years before Nancy Pelosi was informed.
I think it is worth noting that Al Ziedan’s testimony as to how the recordings were used strongly suggests that CIA director Michael Hayden was being disingeneous when he finally acknowledged the tapings. His claim that the recordings were made for training purposes implied that the trainees would be new interrogators. But Al Zeidan’s testimony makes clear that the actual “trainees” were captives undergoing interrogation, and that the training was a demonstration of the shockingly brutality of the techniques interrogator were authorized to use with suspects whose answers didn’t line up with the interrogators preferred narrative.
Finally, I think it is worth noting, that both torture, and the threat of torture, are war crimes. So all the interrogators who used the recordings of Abu Zubaydah’s torture committed a war crime.
The Geneva Conventions requires that the same judicial processes, the same standards of evidence, should be used to try enemies who are suspected of committing war crimes as are used to try one’s own soldiers who are suspected of committing war crimes.
As has been painfully obvious, when murderers like Lewis Welshofer, Joshua Claus, and Ilario Pantano, had the charges thrown out, were acquitted, or got shockingly light punishment. Welshofer, for instance, was docked two months pay, and had two months of restriction to barracks. Restriction to barracks meant he interacted with all his comrades, at work, at the mess, he just couldn’t go to the enlisted club, when he was off duty.
Thanks again Andy.
So James Pohl said,
“Mr. Kammen, this process was set up by the United States Congress and set up by the president of the United States.”
So what Colonel Pohl? Personally, I don’t accept that either the POTUS or the Congress is invested with anything like Papal infallibility. I don’t believe the actual pope has genuine infallibility.
When Congress passed the Military Commissions Act of 2006, it authorized the commissions to try “illegal enemy combatants”. I wondered about that, at the time, because the CSR Tribunals had only confirmed that 520 remaining captives were “enemy combatants”. No one had been classified as an “illegal enemy combatants”. This was an incredibly bone-headed mistake on the part of Congress. I think it illustrates just how fallible Congress can be.
As a Presiding Officer Colonel Pohl has this example of Congress’s fallibility right before him.
In my opinion it should have been considered essential that counter-terrorism duties were delegated to sober, disciplined, adults. It should have been delegated to professionals, intelligent and well educated individuals, capable of exercising creativity, independent thinking, and, most importantly responsible sanity checking.
Unfortunately, a huge fraction of the US body politic remains in a kind of shock and hysteria over the attacks of 9-11 — a shock that numbs the critical faculties.
One of the consequences of this hysteria is an appalling willingness to turn a blind eye to instances when GIs and counter-intelligence officials and contractors committed extremely damaging mistakes, or actual war crimes, because the hysteria triggers an inappropriate and damaging willingness to forgive mistakes and war crimes committed by GIs and officials who acted from patriotic motives.
Thanks, arcticredriver. Very interesting points, as usual. Great comments about Col. Pohl and the institutional hysteria that has also infected the judiciary — in particular, the judges of the D.C. Circuit Court.
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