At Thursday’s arraignment, it is expected that Judge & Col. James Pohl will read the charges and specifications to the accused (unless the accused waives the reading) and invite al-Nashiri to enter a plea (see Rule 904 of the Military Commission Rules (RMC)). The arraignment is complete even if al-Nashiri declines to enter a plea. The hearing is important because once arraigned, no additional charges may be referred to that commission for trial without the consent of the accused (see RMC 601).
At the arraignment, the defense will also be entitled to make any motions before pleas are entered. There are several motions pending, as we’ve discussed (here and here), including
- One concerning the attorney-client privilege,
- One regarding protective orders,
- One requesting the right to make ex parte requests for expert assistance, and
- One requesting that commission members be told whether there is a possibility of release if the commission acquits.
For al-Nashiri, this is the second time around the block. The prosecution swore the first set of capital offenses against al-Nashiri in 2008. This charge sheet covered only The Sullivans and USS Cole attacks. Then, Convening Authority Susan Crawford referred those charges for trial. However, prior to the prosecution providing any discovery and prior to al-Nashiri’s original arraignment (which was scheduled for February 9, 2009), the prosecution moved for a continuance in light of the fact that on January 22, 2009, President Obama issued an executive order directing a review of the military commission process. The judge denied the continuance on the ground that
- the delay was not reasonable and
- would harm the public’s interest in a speedy trial.
The withdrawal of the original charges has also proved prejudicial to the accused. The new charge sheet includes a third attack, that on merchant vessel Limburg, a French oil tanker attacked in October 2002. The attack was similar to the USS Cole and The Sullivans operations in that it used an explosive-laden boat to blast a hole in the hull of MV Limburg. The attack resulted in the death of a Bulgarian crew member and the spillage of 90,000 barrels of oil in the Gulf of Aden. This attack generated three additional and different charges:
- Attacking civilians,
- Attacking civilian objects, and
- Hazarding a vessel.