Since my first article appeared in the Indiana Lawyer in June 2014 describing the events that I observed while at Guantanamo Bay for the Indana University Robert H. McKinney School of Law Military Commission Observer Program, many rulings have taken place that changed the legal posture of the case of U.S. v. al-Nashiri.
U.S. military judge, Army Col. James Pohl, removed himself from the death penalty trial accusing Abd al-Rahim al-Nashiri of orchestrating the 2000 deadly attack on the U.S.S. Cole in the Yemeni port of Aden that killed 17 U.S. sailors. Pohl will continue to be the judge of five Guantanamo Bay prisoners charged in the Sept. 11, 2001, terrorist attacks. No trial date has been set in that case.
The new judge in the al-Nashiri case, Air Force Col. Vance Spath, after being on the case for a month and presiding for the first time the week of Aug. 5, said he would decide all outstanding issues. In February, al-Nashiri’s defense attorneys sought dismissal of the MV Limburg charges, a lesser-known portion of the al-Nashiri case. Al-Nashiri’s charges allege he also set up al-Qaida’s Oct. 6, 2002, bombing of the French oil tanker, MV Limburg. The attack killed Bulgarian crew member Atanas Atanasov and wounded 12 other ship workers.
Spath threw out the Limburg charges on the limited finding that the prosecution failed to produce any evidence about the bombing, as reported by the Miami Herald. Learned counsel, Richard Kammen of Indianapolis, was quoted in the article by Carol Rosenberg calling the decision particularly important because the military court that was set up in response to the Sept. 11 attacks elicits “serious and continuing questions” on whether the Guantanamo war court has jurisdiction over alleged crimes that took place before Sept. 11.
In a comment on the dismissal, Kammen said that the decision demonstrated the need to try the case in federal court. “None of these issues would arise had the case been prosecuted in an Article III court,” he told the paper.
You may recall in recent news that Sulaiman Abu Ghaith, an Osama bin Laden adviser, was sentenced to life in prison in an Article III court in Manhattan. He was a son-in-law of bin Laden and was convicted in March of three counts: conspiracy to kill Americans; providing material support to terrorists; and conspiring to do so.
Attorney General Eric Holder said in a statement that the “trial, conviction and sentencing have underscored the power” of the civilian courts “to deliver swift and certain justice in cases involving terrorism defendants.”
Also, on Aug. 31, 2014, NPR reported that Maj. Jason Wright, one of the lawyers defending Khalid Sheikh Mohammed, resigned from the Army. Mohammed is the self-proclaimed mastermind behind the Sept. 11 attacks. Wright has accused the U.S. government of “abhorrent leadership” on human rights and due process guarantees and says it is crafting a “show trial.” He served for nearly three years on the KSM defense team.
Wright formally resigned Aug. 26 because the Army had instructed him to leave the team in order to complete a graduate course that was required for his promotion from captain to major. He refused the order, saying it would have been unethical to have followed it.
Conversations with Kammen and reading what Wright had to say remind us all that these clients have been tortured “beyond comprehension.” They have been waterboarded hundreds of times, threatened that their families would be killed, deprived of sleep for weeks, and experienced physical torture not many could withstand. These skilled lawyers show up to uphold our constitutional principles by representing defendants that are accused of abhorrent acts, but who also should be guaranteed essential, fundamental due process.•
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.