War Crimes Trial: USS Cole bombing suspect in court for first time

Kammen complains prosecution didn't provide defense complete documents required before military arraignment began.

GUANTANAMO BAY/CUBA: Nine years after he was arrested in the UAE, and five years after he was sent to Guantanamo Bay, Abd al Rahim Husayn Muhammad al Nashiri was presented before a military judge for his arraignment hearing on Wednesday — appearing in public for the first time since his capture.

The central question hanging over the hearing is how the judge will treat evidence and confessions extracted from various torture techniques – an issue that will come to the fore for possibly the first time in such a hearing.

The CIA had acknowledged destroying videotapes of interrogations, during which he was stripped naked and hooded while a gun was loaded and a power drill revved next to his head. He also was subjected to “waterboarding,” which creates the sensation of drowning.

Nashiri has said he gave false confessions to get the interrogations to stop.

The Saudi-born al Qaeda leader has been accused of masterminding the USS Cole attack in Yemen in 2000 which killed 17 sailors and wounded 40 more, and is also accused of an attempted attack on USS The Sullivans, and an attack on MV Limburg in 2002.

Al Nashiri’s trial is the first war crimes trial to be held at Guantanamo Bay under the Obama Administration, and is taking place under the new Military Commissions Act of 2009.

Clad in his white prison uniform sans ankle shackles and handcuffs, Al Nashiri was clean-shaven, with a hint of stubble. Smiling politely while saying he only spoke Arabic and needed an interpreter, Al Nashiri appeared relaxed, and answered questions posed to him by the military judge Col James A Pohl in a clear, loud voice.

The hearing was attended by members of the media, human rights organisations and seven family members of the victims of the USS Cole attack.

Richard Kammen, Al Nashiri’s lawyer, asked the judge a series of questions as the proceedings began on whether the judge supported the death penalty. Judge Pohl was also asked if he believed that public officers were responsible for Al Nashiri’s torture. The judge declined to comment.

According to the charges read out, identical to those on the military commission’s website, Al Nashiri has been charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel.

The accused did not enter a plea at this stage of the hearing.

His defence team also argued motions that they had previously filed with the military commission, including the motion that the prosecution must make clear if Al Nashiri is unlikely to be released even if he is acquitted. Kammen argued, “The US has no intentions of releasing him [Al Nashiri]. We believe that the prosecution conceded as much in their response that Al Nashiri could be held under Use of Military Force Act that was passed shortly after September 11 [2001]. We want them to formally acknowledge that if he is acquitted, he will continue to be held here.”

Kammen said that when the trial begins, the juror might hypothetically assume that participating in the trial is “meaningless” because the accused will be detained at the camps, regardless of the verdict.

As part of his remarks in response to Kammen’s arguments, Col Pohl said that the decision to hold detainees is not made by the Office of Military Commissions. “The people here at Guantanamo Bay, the decision to detain them is made by higher people in the United States government.”

When asked to respond, prosecution lawyer Anthony Mattivi said that as things stood today, and only today, it would be correct that if acquitted, the accused would not be released from Guantanamo Bay.

Al Nashiri was arrested in 2002 from the UAE. He was reportedly kept in a CIA prison and subjected to torture, including water boarding and mock executions, and was transferred to Guantanamo Bay in 2006. On Wednesday, the Chief military prosecutor Army Brigadier General Mark Martins said that statements obtained under torture or inhumane treatment would not be admissible in military commissions’ hearings.

The trial for the USS Cole accused has been postponed till November 2012, however a hearing can be called in January.

WITH ADDITIONAL INPUT FROM AFP

Published in The Express Tribune, November 10^th, 2011.