GUANTÁNAMO BAY, Cuba – Escorted by no fewer than nine guards, but free of handcuffs and shackles, Abd al-Rahim al-Nashiri, on Wednesday, Nov. 9, made his first public appearance since he disappeared into a CIA "black site" in 2002. The guards sat Nashiri, dressed in white prison garb and looking much older and heavier than his one public picture shows, at the front of the bright, air-conditioned, hangar-like courtroom at Guantánamo Bay. The few journalists, observers, and victims allowed on the U.S. naval base to view the proceedings were separated from them by thick, bulletproof glass. Nashiri seemed surprised by all the attention; he looked around and then turned and waved. His lawyer later explained he was just glad to be out of the 8-by-12-foot cell he has lived in for the past nine years.
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Nashiri, a Saudi of Yemeni descent, faces charges of murder and attempted murder in violation of the laws of war for allegedly planning and participating in the attack on the destroyer USS Cole on Oct. 12, 2000, which killed 17 U.S. servicemen; the failed attack on the destroyer USS The Sullivans on Jan. 3, 2000; and the attack on the French supertanker MV Limburg on Oct. 6, 2002.
Nine years after being apprehended in the United Arab Emirates, Nashiri is finally getting his day in court. The arraignment on Wednesday marks the beginning of the first death penalty case to be heard in the military commissions. But will this finally be justice?
Aside from Nashiri's long pretrial detention, the case and the court have been plagued with problems from the start. To begin with, the main charges against Nashiri for "war crimes" stem from events that took place in Yemen in 2000, long before any recognized armed conflict between the United States and al Qaeda. This calls into question whether the military commissions, created under U.S. law specifically to try war crimes, even have authority to prosecute the case.
Then there's the issue of Nashiri's torture in U.S. custody. Held in a secret CIA black site for four years, Nashiri is one of three people George W. Bush's administration admitted to waterboarding -- a form of mock execution by inducing near suffocation long considered torture under U.S. and international law. He was also, among other things, threatened with a gun and, later, with a revving power drill held near his head while he was hooded but otherwise naked. The CIA actually recorded some of Nashiri's waterboarding, as well as the ill-treatment of other detainees, but in 2005 destroyed the tapes, allegedly for national security reasons. Normally, the intentional destruction of evidence by the state in a criminal case would be grounds for serious sanction. But Barack Obama's administration announced last year -- just before the statute of limitations was about to run out -- that no one would be held accountable.
Nashiri supposedly confessed to many things during these interrogations, including his involvement in the Cole and Limburg bombings. He also allegedly said that Osama bin Laden had a nuclear bomb. He has since proclaimed his innocence and recanted those confessions, saying he only made them in a desperate attempt to appease his torturers.
It's unclear how much information gleaned from Nashiri during these interrogations, as well as from other detainees abused during the Bush administration, will be deemed admissible, but rules on the use of this evidence are looser in the U.S. military commissions than in federal court. Commission rules, revamped under Obama, bar the use of statements from the accused obtained by torture, but evidence derived from other types of coercion may be admitted in certain circumstances. In federal court, any evidence derived from coercion would be barred -- absent a showing that it would have been discovered in another lawful way.
Also unlike in federal court, multiple levels of hearsay are admissible, denying a defendant any genuine right to confront witnesses against him. That means prosecutors don't have to produce witnesses and can wait years to prosecute someone, as they did with Nashiri. It also allows prosecutors to launder evidence obtained by torture; the prosecutors need only submit a written summary of the interrogation -- not offer the interrogator, in person, as a witness.
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