By Denny LeBoeuf, Attorney, ACLU National Security Project
The New York Times reports that the Obama administration is preparing to move forward with the military commission trial of Abd al-Rahim Abdul al-Nashiri, accused conspirator in the USS Cole bombing. Unfortunately, prosecuting al-Nashiri in the failed military commissions at Guantánamo will do nothing for justice, long delayed in this case. Instead, it will be doomed by the problems of the military commissions: unfairly lax rules for allowing evidence, admission of coerced testimony, and censorship of evidence of the torture of prisoners.
Such a sham trial cannot produce a reliable verdict and will not restore the honor of the U.S. military and intelligence agents who tortured al-Nashiri, or the lawyers, doctors, and high-ranking government officials who permitted and encouraged it. And it will do nothing to free this country of the disastrous prison compound on Guantánamo or its legacy.
Worst of all, because the United States government seeks the death penalty for Al-Nashiri, the trial will become another rallying cry for our enemies and a deep disappointment to our friends. Both will point to our hypocrisy as a supposed leader on human rights and our increasing isolation in the family of nations as we cling to the "peculiar institution" of capital punishment.
The military commission reforms sought by the Obama administration and enacted by Congress in 2009 were supposed to bring a measure of fairness to the military commissions process, which had been bedeviled by impropriety, misconduct and an extreme inequity of resources between the prosecution and the defense.
In particular, capital cases — that is, cases where capital punishment is sought — were to be provided with resources — qualified lawyers with experience defending clients facing the death penalty with heightened access to evidence, and specialized investigators — similar to those provided in federal court. These reforms were supposed to sweep aside the taint of unfairness that hung over the commissions. It hasn't happened.
In fact, since the reforms were passed we have seen nothing but mounting evidence that the military commissions are incapable of delivering justice. The Omar Khadr case, for example, was a sorry example of the supposed newer, fairer military commissions. Instead of producing an outcome that could be held up as an example of commission justice, the looming trial of the child soldier turned into a pointless sentencing exercise after a plea agreement was reached after the pretrial hearing judge allowed coerced testimony and disallowed evidence of torture. And it was a shambling, embarrassing wreck of a case, marred by inconsistent or unjustifiable rulings.
As today's Times article states, the pursuit of the death penalty in al-Nashiri's case will make this trial particularly significant. Nowhere are the rights of a defendant more important than when the punishment of death is at stake. Nowhere does the rule of law safeguard a more critical right. Although the reformed Military Commissions Act of 2009 does include strong language about the rights of capital defendants to "learned capital counsel" and to necessary resources and access to evidence, so far, not one of those promises has been kept. Despite motions by military defense lawyers, the commissions' Convening Authority has refused all requests for additional resources in the capital cases. The Department of Defense has yet to publish the regulations required to implement the new law, or even to circulate the proposals for comment, as is customary.
The usual problems of the military commissions will arise in al-Nashiri's case. The admission of coerced testimony will be an issue. Since Attorney General Holder announced in 2009 that al-Nashiri would not be tried in federal court, there has been speculation that the government was afraid of the weakness of its evidence. And looming over it all will be the question of al-Nashiri's well-documented torture, and the extraordinary efforts by the government to hide the details of that torture.
U.S. officials waterboarded al-Nashiri. They bent him over backwards in a stress position until one of his interrogators worried that his arms would become dislocated. He was naked, hooded, shackled, and deprived of sleep. His "debriefers" blew smoke in his face, stood on his ankle shackles, and scrubbed his naked body with a stiff wire brush. His torturers hung him from the ceiling by his arms, while they were tied behind his back. And if these medieval torments were not enough to render a subsequent capital trial problematic, his torturers also revved a power drill next to his naked, hooded body. And racked a handgun near his head. "Once or twice".
There is every reason to be concerned that this administration, like the last, is using the military commissions process because it permits a far greater degree of censorship of the prisoner's account of torture than a federal court would allow. In the military commissions, every word the prisoner says to his lawyer — specifically, accounts of past torture or conditions of confinement — can be excluded from the trial.
As today's Times article noted, these torturous acts against al-Nashiri earned him "victim status" in Poland. That's because the acts — though performed by Americans — constitute violations of international human rights laws. And since much of the torture of Al-Nashiri was done by the CIA in the black site in Poland, and Polish prosecutors have instituted a high-level investigation into the complicity of their officials, the robust European enforcement of human rights laws could potentially become a concern.
But if the military commission moves fast enough, the prosecution in Poland won't be a problem for the U.S. We'll just execute the evidence.