[Ppnews] Justice at Guantanamo: From the Profound to the Absurd

Political Prisoner News ppnews at freedomarchives.org
Fri Jun 14 11:03:33 EDT 2013


* Justice at Guantanamo: From the Profound to the Absurd*


    Lawyers argue over basic rules as accused terrorist Abd al Rahim al
    Nashiri faces the death penalty


      by *John Knefel*

JUNE 13, 2013

Arriving at Guantanamo Bay is a bit like coming out of the other end of 
a warp-speed jump in a sci-fi movie. All of a sudden, you find yourself 
in a world that is beyond the ability of most people to visit. And while 
there are familiar sights, like the on-base McDonald's, there are also 
things like the pre-placed stickers on phones at the media desk reading 
"use of this telephone constitutes consent to monitoring" -- a reminder 
of the extreme secrecy that permeates every element of the world's most 
notorious indefinite detention facility.

Abd al Rahim al Nashiri, the accused mastermind of the 2000 bombing of 
the /U.S.S. Cole/, faced his latest round of pre-trial hearings here 
this week. Nashiri is charged with killing 18 people and will be tried 
before a military commission, the Guantanamo justice system created by 
President Bush in 2001 and approved by Congress in 2006 and 2009 after 
federal court challenges. He faces the death penalty if found guilty.

After being captured in 2002, Nashiri was held by the CIA, who tortured 
him in gruesome ways 
<http://detaineetaskforce.org/read/files/assets/basic-html/page201.html>. He 
was waterboarded, threatened with sodomy and made to believe his female 
relatives would be sexually assaulted in front of him. A hand-drill was 
revved near him while he stood naked and hooded, and he was threatened 
with an unloaded gun.

His torture at the hands of U.S. officials will likely play a 
significant role in his trial, and, should he be found guilty, in 
mitigating his sentence. One of the issues debated this week was whether 
he will be excluded from closed-to-the-public, pre-trial sessions that 
include discussions of classified information. The prosecution argued 
that while that no evidence will be kept from him at trial, Nashiri's 
ability to hear classified information should be restricted because he 
does not have a security clearance. Nashiri's lead attorney, Richard 
Kammen, countered that Nashiri needs to hear all evidence presented in 
the pre-trial phase to have a fair trial. "Let's say in a hearing the 
government presents something in good faith that is simply untrue," said 
Kammen. "Let's say some agency gives them incorrect information. He will 
never be in a position to say to us, 'That's not true.' And waiting 'til 
trial is way, way, way too late in a capital case."

Also at issue this week is the applicability of the Sixth Amendment to 
Nashiri's case. The defense argued that Nashiri should have the right to 
confront his accusers -- a constitutional standard designed to prevent 
hearsay evidence. The military commission rules 
<http://www.mc.mil/ABOUTUS/LegalSystemComparison.aspx>, however, allow 
for greater leniency for hearsay as evidence as long as it is "material, 
probative, reliable and the interests of justice will be served by 
admission."

Whether and to what extent the Constitution applies at Guantanamo 
remains an open question. The military judge in this case, Army Col. 
James Pohl, has previously agreed with the prosecution's argument that 
constitutional applicability should be decided on a case-by-case basis. 
"The Constitution applies," lead Guantanamo prosecutor Brig. Gen. Mark 
Martins said in court. "The question is, how does it apply to this 
particular case?" Martins added, "And the Constitution isn't just the 
Sixth Amendment" -- suggesting that the judge should consider the war 
powers that Congress had granted the President by passing the Military 
Commissions Act. The prosecutor also argued that this constitutional 
issue wasn't "ripe" because it remained theoretical, not based on an 
actual piece of evidence the government sought to use.

"If I understood General Martins' answers, the Constitution applies 
except when it doesn't apply," retorted Kammen. "And we don't know when 
it applies until we get to whenever and we move on down the road."

Nashiri's lawyer argued this week that if his client doesn't have the 
right of confrontation, that opens the door to interviews done by FBI 
agents in Yemen around 10 years ago. If the subject of one of these 
interviews can't be found -- or, as with alleged al Qaeda member Fahd 
al-Quso, has been killed by a U.S. drone strike -- their statements 
could be used to put Nashiri to death, even though they would generally 
be considered hearsay and excluded from a civilian court. Kammen 
suggested that this standard could create a perverse incentive for the 
U.S. government to kill witnesses to keep them from facing 
cross-examination, while still allowing prosecutors to use their 
statements as evidence. Martins objected to this line of argument as 
"beyond the pale."

As often happens at Guantanamo, the court proceedings at times verged on 
the absurd. On Tuesday, the judge heard arguments about whether or not 
defense attorney Kammen should be allowed to bring a wire-bound notebook 
to meetings with his client. The detention commander recently classified 
the notebook as contraband, on the basis that part of the wire could 
theoretically be severed and used as a weapon. Though the 
dangerous-notebook episode is in some ways a trivial affair, it 
nevertheless highlights a common complaint among defense attorneys here. 
They often describe the rules on base as unpredictable and arbitrary, 
saying that an allowable item one visit can somehow transubstantiate 
into a forbidden item the next if the command on base changes. "You 
know, almost anything in the imagination --" Kammen was saying, sounding 
half-flabbergasted, when Judge Pohl interrupted him: "I got it." Kammen 
finished his sentence: "-- of somebody who sees danger everywhere can be 
a weapon."

Kammen was describing the rules at Guantanamo, but his warning has 
broader implications. Since 9/11, elected officials in the U.S. have 
constantly invoked the threat of terrorism as a justification for 
increasing their authority. /You know, almost anything in the 
imagination of somebody who sees danger everywhere can be a weapon./

http://www.rollingstone.com/politics/news/justice-at-guantanamo-from-the-profound-to-the-absurd-20130613 


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