Guantanamo Bay, Cuba, has finally been in the news again recently, but Americans have been in the dark too long with little or no information about the prosecution of alleged terrorists at the naval base. I recently had the privilege of serving as an observer for the Indiana University Robert H. McKinney School of Law Military Commission Observer Program and traveled to Gitmo from April 21 to 28 to witness the pretrial motions hearings in U.S. v. al-Nashiri. Abd al-Rahim al-Nashiri is accused of masterminding the bombing of the USS Cole in 2000.
This is the first article of a three-part series that I intend to write about legal procedures that are in contravention of the American court system. By creating the Military Commission Office in 2009, Congress has created a new paradigm like no other. But as any good appellate lawyer, I would first like to frame the issues and comment on how my experience has influenced my thoughts regarding the exchange of Sgt. Bowe Bergdahl for five Afghans imprisoned at Guantanamo Bay.
Guantanamo, at its core, remains a lawless place and at odds with the American value of transparency in its courts. Many dozens of inmates, not accused of any crime and, in fact, cleared for release still remain at Gitmo. Their release has nothing to do with legalities or justice, but just depends on the luck of the draw. There has never been an inmate repatriated to Yemen, the nationality of al-Nashiri. In fact, even if he is found not guilty (an unlikely prospect) he still will not be freed or allowed to leave Gitmo. He is referred to as a “forever prisoner.” So, the exchange of Bergdahl and the prisoners that were released is tied less to court decisions than to the politics of the time.
My first observation has only been reinforced these last few weeks. The hearings that I observed leading up to trial amount to political theater. The prisoner exchanges, which should continue, seem like a show. Legal principles are being re-interpreted with an eye toward satisfying the political wind of the times.
So, the first issue we should consider before we debate whether the transfer of five Afghans was lawful is this: the American public should ask themselves whether the detention of these prisoners is lawful. Many are held without charges being filed, there are few or no protections guaranteed by the Geneva Conventions as was true in prior wars, and the hearings that I observed did not follow constitutional principles that guarantee a fair trial.
Twenty prisoners were first taken to Guantanamo Bay to inaugurate Camp X-Ray Jan. 11, 2002. It is hard to get an accurate account of how many detainees are in Gitmo, but on April 15, 2014, a total of 2,268 remained at the camp, up from 2,127 as of Nov. 6, 2013 – before the prison camp imposed an information blackout. The cost to house one detainee a year in July 2011 was estimated to be $800,000 a year. By July 2013, it was estimated to cost $2.7 million per prisoner based on Defense Department figures. Most of the reporting coming out of Gitmo is from Carol Rosenberg at The Miami Herald, who has an up-to-date twitter account that I recommend, @carolrosenberg. Also, I encourage you to go to the IU McKinney Law School website, mckinneylaw.iu.edu, where there is a link to the MCOP program and its blog.
Al-Nashiri was arrested in 2002, and he is facing the death penalty as the alleged mastermind of the October 2000 suicide bombing of the USS Cole that killed 17 U.S. sailors. Even though he was arrested in 2002, he did not arrive at Gitmo until September 2006, as he was held in various “black sites” that the CIA operated.
It has been reported by Rosenberg and Adam Goldman at The Washington Post that three European countries hosted CIA “black sites” – Lithuania, Poland and Romania. Al-Nashiri was at the Polish site from December 2002 to September 2003, and then moved to other sites. The government has admitted that he was waterboarded many times, threatened to be killed with a power tool, threatened that his mother would be raped, and he was sexually abused. These are the tortures that the government admits.
One of the most contentious motions being considered in the al-Nashiri hearings was first argued in February, and on April 14, Judge James Pohl granted the defense attorneys’ limited discovery about what had happened to the defendant while at a black site. He ordered the CIA to give defense lawyers details – names, dates and places – of its secret overseas detention and interrogation of al-Nashiri.
When I was there in April, the government kept referring back to Appellant’s Exhibit 120 and wanted the court to rescind the part of its order that would allow the defense to have that information. In fact, the government’s motion to reconsider was the main issue argued at the recent June hearings.
The government has been giving the defense either redacted versions of its discovery or summaries. But since the government is in charge of discovery, they get to decide what is appropriate for the defense. Without Rick Kammen’s and other defense members’ relentless arguments about what they need in order to conduct a death penalty trial, there would be no need for a trial of any kind. Keep in mind that all the attorneys have top secret classification so they can read those documents. But their client does not have top secret classification so they cannot discuss those documents with their client.
While on a break at Gitmo, a family member of a serviceman killed in the bombing said loudly and in my presence that Kammen should just get on with it because all “we want to do is kill him (al-Nashiri.)” I understand that this is a war like no other, but we shouldn’t lose sight of our values of fairness and belief in the rule of law.•
Patricia Riley, a judge on the Indiana Court of Appeals, is participating in the Indiana University Robert H. McKinney School of Law Military Commission Observer Program. The opinions expressed are those of the author.