Military commissions are special military courts tasked with trying cases related to violations of the laws of war during times of war. Their use in American history has been rare. However, following the terrorist attacks of September 11, 2001, the Bush administration created them to try suspected terrorists, while the Obama administration has continued their use. The case of Abd al-Rahim al-Nashiri, the suspected mastermind of the USS Cole bombing in Yemen in 2000, is an example.
Al-Nashiri is being tried in a military commission at Guantánamo Bay in Cuba. Pretrial hearings were held last week, from June 11 to 14. Al-Nashiri is 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 hijacking a vessel. These charges relate to the attempted attack on the USS The Sullivans in January 2000, the 2000 USS Cole bombing, and an attack on the MV Limburg in October 2002. For these alleged crimes, al-Nashiri faces the death penalty.
Military commissions are convened by the secretary of defense or any official chosen by the defense secretary. A military judge presides with service members sitting on a jury called a “panel.” At least five members sit on the panel. Panel members are picked based on the basis of criteria that include age, rank, education, years of service and a vague concept called “judicial temperament.” A panel has yet to be assembled for the al-Nashiri commission. Col. James L. Pohl, a US Army officer and lawyer, is the judge presiding over al-Nashiri’s commission.
Under the Military Commissions Act of 2009, military commissions have jurisdiction over 32 crimes, most of which are typical war crimes, such as torture, rape and killing civilians. But conspiracy and material support for terrorism are also included, which many have argued do not amount to war crimes. Military commissions can only try “unprivileged enemy belligerents” who are not US citizens. These are people who have “engaged in hostilities against the United States or its coalition partners . . . purposefully and materially supported hostilities against the United States or its coalition partners” or were “a part of al Qaeda at the time of the alleged offense under this chapter.”
Families of the USS Cole bombing victims have attended al-Nashiri’s military commission. Among them are John Clodfelter and Ronald Francis. Both men have long military careers. Clodfelter served in the US Army during the Vietnam War, while Francis was an officer in the US Navy for 20 years. John lost his 21-year-old son, Kenneth Clodfelter, while Ronald lost his 19-year-old daughter, Lakeina Monique Francis, in the 2000 suicide attack on the USS Cole.
Since the deaths of their children, Clodfelter and Francis have pursued justice for the murders of their loved ones. They have attended multiple hearings and paid close attention to the case as it has developed. Both were dismayed at the length of the proceedings. “It should not take 13 years to bring these people before a trial,” said Clodfelter. The defense, Francis argued, “need[s] to stop the stalling tactics.” To them both, justice would take the form of execution. “I want to be at the front row, front seat at the execution,” said Francis. Clodfelter wants the “execution of all” involved in the attack.
Several motions were brought up during the hearings. Some related to the loss of data from the legal defense’s computers; electronic monitoring of attorney-client meetings; the dropping of terrorism and conspiracy charges and the banning of spiral notebooks in rooms for attorney-client meetings (which was discussed incessantly). Issues of particular interest, all strongly emphasized by the defense, were the right of confrontation under the Sixth Amendment, admission of hearsay evidence and the defendant’s right to participate in discussions relating to classified information used as evidence against him.
The prosecution – i.e., the government – is using Fahd al-Quso, another suspected coconspirator in the USS Cole bombing, as a witness against al-Nashiri. There’s only one problem – al-Quso is dead – by US drone strike in Yemen last year. Al-Nashiri’s defense attorney Richard Kammen, an Indiana-based criminal defense lawyer with a focus on death penalty cases, brought up a chilling question during the hearings; Can the United States government use the statements of a dead man – a man it killed, in fact – as evidence in a military commission?
The defense filed a motion on this issue, which was argued on June 11. The Sixth Amendment of the US Constitution states that, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .” Kammen argued that the 2008 US Supreme Court decision Boumediene v. Bush, which ruled that Guantanamo Bay detainees have a right to challenge their convictions in US courts (habeas corpus, which is protected by the US Constitution’s suspension clause), extends constitutional protections to military commissions, including the confrontation clause. Therefore, al-Nashiri has a right to confront a witness being used against him in court. Since al-Quso is dead, there is no way that al-Nashiri can confront him.
The prosecution and Judge Pohl did not buy this argument. Both questioned the applicability of Boumediene to the confrontation clause.
In the same hearing, Kammen questioned the prosecution’s evidence, much of it obtained from FBI or other agents who interviewed people in Yemen over a decade ago; reading their firsthand reports; or hearing FBI agents read reports by other agents. Kammen argued that this evidence is “single-level or double-level hearsay from witnesses who were interviewed under unknown circumstances years and years and years ago.” Many of the witnesses in the FBI reports were detained by Yemeni authorities for months before the FBI was allowed to interview them. Hearsay is inadmissible in federal criminal courts, with some exceptions, but it is much easier to get hearsay admitted in military commissions. According to the 2009 Military Commissions Act, hearsay is, for the most part, admissible.
The chief prosecutor, Brigadier General Mark Martins, argued that, in some circumstances, particularly those arising from wartime hostilities, hearsay may be the only evidence available. In those situations, “It’s up to the judge there to determine if that is compliant with basic fairness, and if it meets the due process guarantees.” Col. James L. Pohl, the judge presiding over the al-Nashiri commission and an officer in the US Army, essentially agreed with this interpretation. Kammen’s overall point was that denying the accused the right of confrontation and allowing hearsay evidence undermined the reliability of the proceedings.
In another hearing the next day, defense argued a motion against the removal of al-Nashiri from the courtroom during pretrial proceedings that discuss classified information used as evidence against him. Air Force Major Allison Daniels, on the defense team, told Judge Pohl, “We’re not allowed to discuss classified information that’s been provided to us by the government with Mr. Nashiri. If he brings up the discussion, we can, but any evidence that we have, we can’t present that evidence to him for a thorough discussion about that evidence.” Defense argued that this impedes their ability to fully represent their client, thereby, depriving him of his right to counsel. Moreover, much of the classified information relates to the abuse and torture he suffered in US custody. Therefore, according to the defense, he should be present during all phases of the proceedings.
But the judge asked, “Does the defendant have the right to access all classified materials, even though he does not have a security clearance?” Daniels answered, “Yes,” because this is a death penalty case and the stakes are higher. Moreover, there is no rule demanding his exclusion from pretrial hearings. Al-Nashiri’s presence lends legitimacy to the proceedings, he added. Justin Sher, on the prosecution team, argued that the defendant has a right to be present but that right is not absolute. It’s the defendant’s right to be present during the trial, but he can be excluded from classified pretrial hearings.
Daniels then brought up “classified evidence that the accused was exposed to.” She argued, “The evidence at issue is the torture inflicted on Mr. Nashiri; he was exposed to the evidence.” If al-Nashiri was “exposed to the classified information at issue,” she asked, “what is the harm in him hearing that evidence in open court?”
Abd al-Rahim al-Nashiri was tortured for several years by the CIA. He was held in CIA black sites in Morocco, Poland, Romania, and Thailand. His abuse included waterboarding and mock executions with a gun and power drill. The CIA destroyed its interrogation tapes of al-Qaeda suspects, which included a video of al-Nashiri’s waterboarding, in 2005. After his capture in Dubai in 2002, he was transferred to Guantanamo in 2006.
Throughout the hearings, the word “torture” was brought up a few times. However, questions about “sources and methods” of interrogation were left without answers from the prosecution and, to some degree, the defense. Neither specify which “sources and methods” were used because that information is classified.
Sher said if the defendant “provides” classified information, then he has a right to be present during those pretrial hearings. Otherwise, he can be excluded. The defendant can also waive his right to be present, as well.
Kammen later jumped in. He pointed out that defense can’t ask al-Nashiri about what classified information he was exposed to because they are prohibited from doing so. Kammen emphasized that the defense simply can’t wait until the trial to discuss such matters because they need to prepare their case beforehand. Again, the prohibition undermines their ability to counsel him, he said. At the end of the day, there was no ruling on the motion.
On the last day of the hearings, the judge, defense and prosecution met in closed session. Due to mention of classified information, it was closed to the media, and much of the public to protect national security. Al-Nashiri was excluded from the hearing, even though he wanted to be there, nor could defense attorneys discuss the meeting with their client. Kammen objected to the exclusion, noting that this was very unusual, particularly in a capital case where the stakes are higher. The actual contents of the session were not divulged publicly to the media during the final press conference. However, Martins said a transcript would be sent to media representatives. How redacted that transcript will be is unclear. What information was classified and why is also unclear.
The defense consistently brought up the difficulties that arise when holding the trial at Guantanamo Bay, Cuba, rather than in a federal court on United States soil. If the trial were held in a federal court on United States soil, the rules would be more clear, making it much easier to go to trial, they argued. Having a military commission in Guantanamo Bay, with less transparency and muddled rules, has meant that the defense and prosecution have had to clarify basic legal questions as they go along. This has dragged the process out longer and made it more confusing to know which rules and rights apply. At the press conference, Kammen said a federal court would be a “far better forum” because “we would know the rules.”