I had the opportunity last month to travel to Guantanamo Bay Naval Base’s Camp Justice as a non-governmental observer representing the National District Attorneys Association as part of the Military Commission Hearings on Abd Al-Rahim Hussayn Muhammad Al Nashiri.
Mr. Al Nashiri is accused of planning the explosions that hit the USS Cole on Oct. 12, 2000. He faces 17 first-degree murder charges and a possible death penalty.
At the hearing, the defendant was present, while the victims and victim’s families, as well as a reporter and a sketch artist were seated in a booth with the NGOs. Interestingly, the sketch artist had to do his drawing later and could only observe at the hearing.
The hearing started at 9 a.m. precisely, but rather than watch the hearing itself, I watched the video of it, because the sound was on a 40-second delay.
The defendant was represented by several military Judge Advocate General’s attorneys and a senior civilian attorney with death penalty case experience. The government was also represented by several military/JAG attorneys — headed by an Army general — and a civilian attorney. The judge was a retired military judge.
Here’s what I saw:
The defendant’s counsels first action was to site a prior Sept. 11 hearing concerning third parties having access to microphone feeds of counsel/client conversations and conversations between defense counsel. That argument went on for an hour until the judge suggested that defendant’s mikes be removed.
Then, the government moved for a Rule 706 review of the defendant’s compentency to stand trial, which the defense counsels objected to. The back and forth over this matter delayed the hearing for three hours.
In the afternoon, a disagreement arose over a doctor’s evaluation. The defense wanted it done without a guard in the room, but the government objected. The Judge allowed the request, provided guards could observe by video, the door remained unlocked and the doctor signed a waiver.
The defendant, whose restraints were allowed to be removed in the courtroom, sat with his counsels and an interpreter and was able to listen to a translation of the testimony and arguments. There were many military police standing near the defendant and in the courtroom.
The judge granted the government’s motion for a competency evaluation, but he ruled the evaluation stopped the hearing until a review was completed. The government objected, but the judge said all matters were discontinued until April 14.
Hearing this, the defense sought to put on a doctor, a foremost expert on torture, to argue that the 706 review board needs special training. The judge ruled he would decide that evening whether to allow the doctor to testify.
On the second day of the hearing, the judge ruled he would allow Dr. Iacapino to testify via video from California that special training was necessary for evaluating torture victims. An attorney for the government noted that the evaluation was not for treatment, but for competency. The judge agreed with this and decided to let the board-appointing authority to see that qualified members are on the board.
A side issue developed when the defendant was brought in for the afternoon hearing. The defense counsels claimed he may have been mistreated for transport and pointed to red marks on his wrists. They requested that video and photos be made available. It was admitted that Al Nashiri had been waterboarded twice prior to being transferred to Guantanamo Bay.
After the hearing, there was a press conference. While the lawyers made their usual statements, about 10 victims of the USS Cole and family of deceased sailors spoke. They were very emotional in their thoughts.
The next hearing is scheduled for April 14 if the evaluation is completed.
— Ralph Lorenzetti is the prosecuting attorney for Jefferson County