Torture, Review of Legal Mail at Issue During Guantanamo Military Commission Hearing

Editor's note: Coverage of this week's military commission hearing at Guantanamo is a collaboration between Truthout and Seton Hall University School of Law, Center for Policy & Research.

Guantanamo Bay, Cuba – The defense attorney representing the alleged mastermind of the deadly attack on the USS Cole told a military commission Tuesday that his client has been so psychologically scarred from the torture he was subjected to at a CIA black site prison that he cannot adequately prepare for his defense if he is forced to wear shackles.

Richard Kammen introduced a motion during a pretrial hearing held for Abd Al-Rahim Hussayn Muhammad al-Nashiri requesting that a military judge order prison officials to allow al-Nashiri to be kept unrestrained when he meets with his attorneys in a locked room to discuss his case. Nashiri, a high-value detainee, is being held at a top-secret camp at Guantanamo known as Camp 7.

Kammen told Chief Military Commissions Judge James Pohl that the shackles used to restrain al-Nashiri to the floor had a tremendous psychological impact on his client because they were similar to the restraints used on him at CIA black site prisons, where al-Nashiri was subjected to torture methods such as the drowning technique known as waterboarding.

Judge Pohl ultimately deferred making a decision by deferring to the judgment of Joint Task Force-Guantanamo (JTF-GTMO), which runs the detention center, and has said that restraining al-Nashiri even when he is meeting with his lawyers is a necessity.

Kammen did argue, however, that when al-Nashiri met previously with the International Committee of the Red Cross (ICRC), he had been allowed to be unrestrained and locked in a room. Still, Judge Pohl, while deferring to JTF-GTMO's authority, essentially invited Kammen to reintroduce his motion with evidence to back it up at a later date, and likely in closed session because it involves information about the torture techniques al-Nashiri endured, which the government says is classified.

Kammen was precluded from further arguing his motion, however, because the issue had not been properly briefed or presented to the court by a witness.

Al-Nashiri wore a white jumpsuit when he was brought into court Tuesday by a team of six guards. Although he was not restrained by any devices, two guards wearing blue latex gloves held his arms as he walked, with four gloved hands touching him at all times. The guards sat him in a chair at the defense table and then separated from him to take their seats.

Much of Tuesday's pretrial hearing revolved around issues pertaining to legal mail and a recent order introduced by Rear Adm. David Woods, the commander of Guantanamo, that authorizes a so-called “privilege review team” to first read the mail his attorneys send him. The matter has become so heated, with al-Nashiri's legal team decrying Woods' order as an outrageous and unethical violation of the attorney-client privilege, that it threatens to derail the military commission.

Judge Pohl appeased both sides by allowing Woods to testify – who was visibly unhappy about the decision, on an issue that he did not seem to know much about, despite having issued an order – and prohibiting the testimony of a member of the privilege review team. Woods said that the mail is being reviewed to ensure it doesn't contain “contraband.”

Kammen also introduced a motion to allow ex parte requests for funding of expert witnesses with limited notice to the prosecution. Currently, defense attorneys must make requests for funding, with an explanation for its necessity, to the Convening Authority of the Military Commission. The Convening Authority then consults with the prosecution. Kammen stressed that the Military Commission Act of 2009 attempted to make military commissions functionally the same as federal courts. Particularly in death penalty cases, Kammen argued, no state or federal court in the country would deny a defense request for an expert witness, much less give the prosecution a “vote” in the matter.

Judge Pohl again expressed his reluctance to “tell the Convening Authority what to do.” And again, the decision only half solved the problem; defense is ordered to continue making requests with only limited information available to the prosecution. Upon rejection of the request by the Convening Authority, it can bring the matter to Judge Pohl, who may grant the request ex parte if “extraordinary circumstances” exist – which, he indicated, likely would exist if the relevant information is attorney-client privileged, considering this is a capital case.

The next issue that arose Tuesday again concerned the uniqueness of this commission context. Defense attorneys are required to use government computers, yet all activity on such computers is subject to monitoring by the Department of Defense, which means the government could gain insight into al-Nashiri's defense strategy. After hearing from government expert witness Adam Bennett, and engaging in a lengthy discussion on the respective security of enclaves and encrypting, Judge Pohl ordered that defense counsel could secure the confidentiality of al-Nashiri's information by encrypting it, although it was made clear through testimony and Kammen's argument that this is a far-from-perfect remedy.

Other matters addressed Tuesday were Kammen's announcement that he would seek in the future to have remote viewing of the commission hearings available at US District Court in the District of Columbia, as opposed to the Army base at Fort Meade, Maryland, because that would, in his opinion, render the viewing more accessible to the public.

At a press conference following the hearing, Kammen told reporters, “the things we are fighting about are things we would never have to fight about in a US court.”