Guantanamo Bay Military Commission Proceeds against USS Cole Bombing Defendant

Just two days after his inauguration, Barack Obama signed an executive order directing that Guantanamo Bay be closed within a year. In an effort to bring this campaign promise into reality and to bring terrorists into the civilian court system, the Obama administration has irresponsibly disparaged military tribunals and the Guantanamo Bay terrorist-detention facility. While the facility remains open, White House Spokesman Jay Carney told reporters in February 2011: “The president remains committed to closing Guantanamo.”



And what happens if the President makes good on this promise? Some terrorists will get their “day in court.” Others are likely to be released altogether.

Judicial Watch uncovered some Bush-era documents earlier this year documenting the significant risks to the general population if the detainees were released. One Department of Defense document describes the danger in stark terms: “There is substantial risk that detainees at Guantanamo, upon release, would set out to kill Americans or other innocent civilians around the world.”

Thanks to the public’s negative reaction to Obama’s “new-rights-for-terrorists” proposals, a day in a civilian court or an all-out release was not immediately in the offing for Abd al-Rahim al-Nashiri, an al-Qaida member accused of orchestrating the October 12, 2000, attack on the Navy destroyer USS Cole. He must face a military tribunal first.

Judicial Watch was granted approval to monitor as a non-governmental organization (NGO) Abd al-Rahim al-Nashiri’s arraignment, which was held at the Guantanamo Bay Naval Station, Cuba, on Wednesday, November 9. The prosecution plans to seek the death penalty.

Judicial Watch representative Irene Garcia (JW’s Corruption Chronicles blogger) observed the proceedings by the U.S. Department of Defense through the Office of Military Commissions. At this time, the proceedings against Abd al-Rahim al-Nashiri represent the only active case scheduled for Guantanamo Bay.

Here is Irene’s first-hand report from Gitmo on the arraignment:
Abd al-Rahim al-Nashiri was escorted into a top security courtroom at Guantanamo Bay Naval Station Wednesday morning by an army of military officers. Clean shaven and with short-cropped hair, the al-Qaeda terrorist charged with orchestrating the 2000 attack on the Navy destroyer USS Cole chose to wear his white prison jump suit to the arraignment of his military tribunal. In fact, he told the judge through his Arabic interpreter that he “intended to show up” in his “prison uniform” though he knew of his right to wear civilian clothes.

Al-Nashiri appeared physically fit, cocky and quite relaxed for a man facing death. At times he smiled and often looked back at the media and observer gallery separated from the courtroom by sound-proof glass. Shortly after entering the courtroom al-Nashiri waved at the observer gallery where family of USS Cole victims also sat. At a press conference following the four-hour hearing, al-Nashiri’s defense attorney, Richard Kammen, dismissed it as a “completely meaningless gesture” and a “reaction to being in a different setting.” Al-Nashiri did not enter a plea in the death-penalty case.

Next to al-Nashiri were his four taxpayer-funded defense attorneys—two civilian and two military—led by Kammen, who has impressive credentials as a renowned death-penalty lawyer and has appeared before the U.S. Supreme Court and federal district courts throughout the nation. Kammen estimates it will cost millions to defend al-Nashiri, whose trial has been tentatively scheduled for next November.

About an hour into the hearing Kammen bombarded the judge, Army Colonel James Pohl, with a series of questions not permitted by counsel in civilian courts. Among them was the judge’s personal opinion about the death penalty and if he thought al-Nashiri was guilty. Kammen also asked Judge Pohl if he believed that, by torturing al-Nashiri, the U.S. forfeited its “moral authority to seek the death penalty” against him. The judge responded that he did not think al-Nashiri was guilty and dismissed the other questions as irrelevant to the proceedings.

Judge Pohl went out of his way to assure that al-Nashiri understood all his rights and repeatedly asked if he comprehended what was going on in the hearing. Al-Nashiri responded affirmatively, often slouching in his chair and appearing uninterested. Besides al-Nashiri, eight people sat on the defense side and six on the prosecution. Designed to try high-value detainees, the courtroom seats only the legal teams and jury. Around 15 chairs that accommodate military guards line the side wall. The viewing gallery seats about 50 and audio is delayed 40 seconds to protect classified information that may arise in proceedings.

Judicial Watch was approved by the Department of Defense (DOD) to observe al-Nashiri’s arraignment along with several legal and civil rights groups, most of which are advocating on al-Nashiri’s behalf and pushing for the trial to be held in a civilian court rather than a military tribunal. Judicial Watch witnessed a deep commitment to justice by military lawyers as well as al-Nashiri’s topnotch capital defense attorney. Even some of the pro al-Nashiri civil rights advocates who witnessed the arraignment admitted it was “well managed” and that they were “impressed” with some of the questions asked by defense attorneys…

…After the arraignment the father of a sailor who died in the blast answered what appeared to be a challenge by a reporter about the death penalty in this case. “It’s worth it for 17 of our soldiers,” said John Clodfelter whose 21-year-old son Kenneth died in the USS Cole attack.

The USS Cole was the target of a suicide attack while the warship was moored and being refueled in the Yemeni port of Aden. Seventeen American sailors were killed and 39 were injured. The blast occurred when a skiff laden with explosives detonated against the port-side hull of the USS Cole and tore a 40-by-40-foot hole in the side of the stricken ship. It was the deadliest attack against a U.S. Naval vessel since the Iraqi attack on the USS Stark in May 1987.

Osama bin Laden’s al-Qaeda terrorist organization claimed responsibility for the attack, which occurred less than a year before 9/11. And in 2002, al-Qaeda operative Abd al-Rahim al-Nashiri was captured in the United Arab Emirates and charged with being the mastermind of the bombing. He has been a prisoner at the Guantanamo Bay facility since September 2006. Previous to that, he was held in a secret Central Intelligence Agency (CIA) location.

It has been a long time in coming, but Abd al-Rahim al-Nashiri is facing the justice he deserves in the right place — before a military tribunal. We were pleased to once again observe the military tribunal process and to provide some balance to the radical groups advocating for the terrorist detainees that were observing the proceedings.

In 2008, Judicial Watch Director of Litigation Paul Orfanedes visited Guantanamo Bay to monitor military commission proceedings against Khalid Sheik Mohammed and other top 9/11 conspirators. (We were on the ground to help counterbalance the ACLU.) I published a brief interview with Paul that appeared in this space after his visit. Feel free to check it out to see Paul’s observations regarding the military tribunal process.

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