At GTMO: edgy accused, whirl of motions, hurricane

(2d of IntLawGrrl Kathleen A. Doty's post on military commission proceedings, which she has observed this week on behalf of the National Institute for Military Justice; her 1st post is here)

GUANTÁNAMO BAY, Cuba – If I hadn’t happened to look to the side door at that moment, I might have missed it.
There was no fuss as the accused, Abd al-Rahim al-Nashiri, walked slowly into the courtroom here at the Guantánamo Bay Office of Military Commissions court facility. Dressed in all white, Al-Nashiri wore no shackles and moved freely. He was followed closely by two guards wearing blue latex gloves, but neither appeared to touch him. He sat down next to his lawyers, one of whom handed him a suit jacket. He slipped it on over the jumpsuit.
Al-Nashiri is a slightly stalky man, with broad shoulders held closely to his neck. He is clean-shaven and, at age 47, surprisingly young-looking.
He doesn’t fidget exactly, but is always in motion, leaning from one side to another. He cocks his head to speak to his lawyer, and then motions for one of the guards. I can’t hear through the triple-paned glass, but it is soon apparent he’s asked to switch chairs. They take away the wood-framed, padded chair and replace it with a swiveling office chair on wheels. He sits back down and seems to settle in. He looks around the courtroom, and finally turns the chair to face the gallery. He rests his chin on his hand, and gazes in our direction. His face gives nothing away, but we stay fixed in his gaze for what seems like minutes. His lawyer asks him a question, and slowly he twists the chair back around.

Abd al-Rahim al-Nashiri

When the judge, Army Colonel James L. Pohl, entered the courtroom Wednesday, he launched into a colloquy with the defendant about presence. The accused answers that he understands, but requests permission to speak. He rises, and winces dramatically, as if in pain. He tells the court that he has been here ten years without anyone to listen to what he has to say. He says he always has the intention to show up in court, but that there are two small problems. He tells the judge that if he orders the guards to bring him a bad chair and he is uncomfortable, that he will leave the court. He explains that he has a bad back and bad nerves. And he tells the judge that he must be transported in a good car. He tells them that he is sick and throwing up and that he has a right to a better vehicle.
Behind me a man whispers:

'Is this guy for real?'

The defendant continues.
He says that in the prison, new rules are continually created under so-called security measures, and that these are attacks on him. He informs the court that he did not attend the last sessions because of the guards’ ill-treatment, including the use of belly chains. The accused insists:

'Security must have a limit.'

The judge interrupts when the accused goes into the specifics of his complaints, informing him that his counsel can raise these issues later. Al-Nashiri responds:

'If I don’t come again, that will be my way of condemning what’s going on . . . let the world know that the judge sentenced me to death because I didn’t show up to court due to chains.'

Another man in the gallery remarks:

'This is better than HBO Comedy.'

***

During the morning sessions, the judge addressed a series of discovery motions (documents available here). After the recess, the court heard motion 117, Defense Motion to Dismiss for Violation of the Defendant’s Due Process Right to a Neutral Convening Authority, and motion 104, Defense Motion to Dismiss because the Convening Authority Exceeded his Power in Referring this Case to a Military Commission.

The defense argued in motion 117 that due process is offended by the convening authority structure, which vests in Bruce MacDonald, a retired Navy officer who has served as the Convening Authority since 2009, the powers to:
► Refer charges;
► Decide whether capital punishment is available;
► Select commissioners and the chief judge;
► Grant plea agreements;
► Determine the budget of the court, the defense, and the prosecution; and
► Make the initial post-trial decision to grant clemency.
While these grants are borrowed from the courts-martial, the defense argued that the Convening Authority is not concerned with the same issues as the latter system, such as the well-being of the defendant, the best way to resource and command a unit, and the good order and discipline function. Further, the defense continued, Congress did not require this set-up by statute, and due process requires neutrality.
Prosecutors argued that due process has been afforded. Congress, by statute, created the military commissions, they continued, adding that the authority to convene them was delegated to the convening authority, and that the defense has not shown that the military commissions operate in contrary to this structure. They argued further that the due process cases cited by the defense all refer to the neutrality of a final decisionmaker – which in this case is not the convening authority, but the judge. The prosecution also stressed that great deference should be given to the military rules in this context. It argued that the defense has the burden to show a lack of due process and that the burden had not been met.
Judge Pohl took the matter under advisement.
The court turned to motion 104, in which the defense argued that the referral of charges against Al-Nashiri were not in accordance with applicable law.

USS Cole after attack

Defense attorneys explained that the military commissions are courts of limited jurisdiction, intended to hear cases concerning war crimes committed during times of war and subject to the laws of war. As such, they argued that only if the political branches had acted, either by a congressional declaration of war or a presidential war powers notification, would the military commissions have jurisdiction over hostilities occuring in Yemen before the acts were passed. (As detailed in previous IntLawGrrls posts available in our Guantánamo series, principal charges against Al-Nashiri stem from the 2000 bombing of the USS Cole while it was refueling in the Yemeni port of Aden.) The defense did not argue that the United States had to be at war with another country; rather, it argued that if Congress or the President had identified a state of war against an organization, this would be legitimate. The Military Commissions Act cannot retroactively cover this time period or location, or deem a state of hostilities to have existed if the political branches had not acted. The defense stressed the importance of reciprocity in international law. It also contended that this is a question of law to be decided by the judge, and not a question of fact to be proven beyond a reasonable doubt at a later time.
The prosecution, citing primarily to Hamdan v. Rumsfeld (2006), countered that this is a question of fact, and should be proved as an element of the case. They argued that the political branches spoke when they created the military commissions, and only required the prosecution to show a state of hostilities, not a state of war. As such, they requested that the motion be dismissed.
The judge also took this motion under advisement, and due to Hurricane Sandy – the rapid approach of which I noted in my previous post – the judge adjourned for the day.

***

The experience of attending the hearings in person brought home for me the weighty interests on all sides of these trials. Seeing the defendant and the courtroom in person, witnessing the manner of the judge, listening to the arguments of the government and the defense, sitting next to victims and victims' family members, and interacting with the press underscored that there are no easy answers. I am honored to have represented the National Institute of Military Justice in this capacity.
On a personal note, GTMO survived the hurricane with minimal damage. We had hoped to have one more day of hearings, but with power out across most of the base, they were cancelled yesterday morning. This downtime allowed us to tour a bit of the island, and now that power is back, to catch up on blogging before our early flight home Friday – I'll probably be in the air by the time you read this.