On April 5, 2016, Charlie Savage of The New York Times reported that two more detainees had just been transferred from Guantánamo’s detention facility, reducing the total to 89. Officials expect to transfer another 35 by summer’s end, which would bring the number to 54. This significant depletion, as will be seen, argues ever more powerfully for shuttering the prison.

Human Rights First tells us that the cost of running the prison facility in 2015 was $445 million, though the actual amount was higher, since that did not include the cost of Camp 7, which holds “high-value detainees.” That number is classified. Over the course of 2015 (as the year closed, the prison population had dwindled to 107 detainees), “the absolute minimum cost ranged between $3.7 and $4.2 million per year, for each detainee.” With the population due to be cut in half by fall from the year-end 2015 level, the cost per prisoner should double. Further, large capital outlays are impending: due to inadequacies in the technological infrastructure, $31 million has been budgeted for building an underwater fiber-optic cable for use by the military commissions and the prison; the military has requested an updated medical facility (with the aging prisoner population, medical costs are expected to skyrocket if the detention facility is not closed); since the entire detention facility was designed to be temporary, its infrastructure is beginning to crumble; finally, new courtroom facilities will be needed. Right now, pretrial proceedings are being conducted in only three cases, but more prosecutions are contemplated.   With only two courtrooms, logjams can be expected, so the Expeditionary Legal Complex will have to be enlarged.

Yet, at a Supermax prison in the U.S., the annual cost of housing prisoners is only $78,000 each.  It doesn’t take a math whiz to figure out where the prisoners should be. But Congress, many of whose members claim to be budget reduction hawks, ignore all this red ink, preferring demagoguery to sensible policy. Want to be convinced? On April 7, 2016, The New York Times told us that American prisons currently hold 443 convicted terrorists, including Zacarias Moussaoui, who was directly linked to the 9/11 attacks; Dzhokar Tsarnaev, one of the Boston Marathon bombers; and Umar Farouk Abdulmutallab, the “Underwear Bomber.” And yet those demagogues in Congress—attempting to gain political capital—assert that terrorists cannot safely be held on our own turf!

The Dzhokhar Tsarnaev terrorism case required just under two years from his arrest following the Boston Marathon attack to complete his trial. His sentencing hearing before the jury added another month. But Tsarnaev was prosecuted in a civilian federal court, whereas Nashiri has been charged before a military commission (MC) at Guantánamo, where vastly different realities prevail. The proceedings against Nashiri began with the filing of charges in September, 2011, nearly four years ago, and no one argues that he will be tried anytime soon. Indeed, probably you could fit another Tsarnaev prosecution within the time that will pass before the Nashiri trial even begins.

What progress has been made recently? Zero since March, if you gauge progress according to hours of court time. Even before that, the Convening Authority (CA) — the government official who not only convenes the MCs, but who also is responsible for their staffing and resources, among other duties — dissatisfied with the progress in the Nashiri and other MC cases — sent an Action Memo to the Deputy Secretary of Defense (DSD) recommending that, to speed them up, the DSD should direct that military judges presiding over MC prosecutions have no other duties in other cases, and order that they live full-time at Guantánamo; the DSD followed this advice. Alas, neither the CA nor the DSD seem to have considered the longstanding and strict proscription in military courts against exerting unlawful command influence over them, carried forward in the Military Commissions Act of 2009. One military case even describes unlawful command influence as “the mortal enemy of military justice.” Though the DSD by then had rescinded his directive, on March 14, 2015 Military Judge Vance Spath — to rid the Nashiri case of taint from the CA’s and DSD’s original action — disqualified the CA and his staff from any further role in the Nashiri case, and directed that the DSD appoint a replacement CA. Further, “to ensure that any last vestiges of taint” would be removed, he adjourned scheduled court proceedings, and warned that any similar efforts to improperly influence the trial judiciary “will likely lead to more drastic remedies.” Especially since the defense team had sought dismissal of the prosecution because of the CA’s and DSD’s transgression, no doubt Spath’s threat got the government’s attention.[1]

These antics represent merely the latest in a parade of strange doings in the Nashiri case flowing from the decision to charge him in an MC rather than a civilian federal court. To mention only two, Judge Spath dismissed one of the three sets of charges against the accused, not because they failed to allege a crime, but because an MC has no jurisdiction (that is, power) to try such offenses. The charges concerned the attack, allegedly orchestrated by Nashiri, on the French-flagged supertanker MV Limburg, a civilian vessel chartered by a Malaysian firm, and carrying Iranian oil. Judge Spath found that the government had failed to produce evidence, despite opportunities to do so, to support its contention that the attack took place as part of an armed conflict. On the government’s motion for reconsideration, Spath amended his order by making the dismissal “without prejudice,” meaning that the charges may be brought anew.

The prosecution filed an appeal to the Court of Military Commission Review (CMCR) seeking reinstatement of the dismissed charges, which prompted Nashiri’s defense team to file a petition with the D.C. Circuit Court of Appeals, asking that civilian court to disqualify two of the three CMCR panel members assigned to hear the appeal because their appointments violated the Commander-in-Chief and Appointments Clauses of the U.S. Constitution. After staying the CMCR proceedings, the D.C. Circuit heard oral argument on the petition, but has yet to rule.

On March 27, 2015, the prosecution filed another appeal to the CMCR, this time seeking review of Judge Spath’s order preventing the government from expanding its charges and specifications relating to the assault — again, allegedly planned by Nashiri — on the USS Cole in Aden Harbor by offering evidence of wanton disregard not only for the lives of the Cole’s sailors killed or wounded when the explosives-laden launch struck their vessel and those of its other crewmembers as well, but also for the lives of foreign nationals working to fuel and service the ship. Resolution of that appeal also must abide the D.C. Circuit’s decision on the accused’s petition to disqualify the two CMCR panelists.

On April 10, 2015, Spath decided that, because the CMCR’s resolution of the two appeals “will shape how this case progresses and is tried,” he would conduct no further hearings until either of the appeals is resolved. No one can predict how long that stay will continue, especially since the CMCR can’t decide anything until the D.C. Circuit rules on whether the CMCR panel of judges assigned to hear the appeals has been constitutionally staffed.

As Air Force Colonel (Ret’d) Morris Davis, former Chief Prosecutor of the MCs recently pointed out, after the CA was forced to leave, his interim replacement was the seventh to serve in that role since 2003. Further, six military lawyers have served as Chief Prosecutor of the war courts. “Think about that for a moment. If a professional football team was on its seventh head coach and sixth quarterback in less than a dozen years, that team almost certainly would be a loser.”[2]

The numbers confirm that verdict. All told, only eight detainees have been convicted by the MCs, and four of those convictions have been overturned, three fully and one in part. Compare that paltry record to the nearly 500 convictions rendered by civilian federal courts on terrorism-related charges.[3]

Colonel Davis is right: “we need to … end this litany of failure” in the MCs.

[1] On May 8, 2015, the defense filed its Renewed Motion to Dismiss for Unlawful Influence. However, the basis for the renewed motion is unknowable, as the papers remain under security review, so they are not yet available.

[2] http://www.nytimes.com/2015/03/28/opinion/guantanamos-charade-of-justice.html

[3] https://www.humanrightsfirst.org/sites/default/files/gtmo-by-the-numbers.pdf

On July 24, 2014, the European Court of Human Rights unanimously ruled that, beyond a reasonable doubt, Poland had violated the rights of Abd al Rahim al Nashiri and Abu Zubaydah under the European Convention on Human Rights by allowing their transfer to a secret CIA black site code-named “Quartz,” located in Stare Kiejkuty in northeast Poland, where they were detained, interrogated and tortured. (In 2011, capital charges were filed before a military commission at Guantanamo against Nashiri for his alleged primary role in the lethal attack on the USS Cole and other war crimes, and Abu Zubaydah, for years held at Guantanamo, has been detained at various sites for over 13 years, while never being charged.) The court—the first anywhere to rule on the existence of the CIA’s secret prisons—entered money judgments in favor of the two prisoners ($114,000 for Nashiri, $148,000 for Zubaydah), and also found that, at the time of Nashiri’s transfer from Poland, there was a “real risk that his trial before the (U.S.) military commission would amount to a flagrant denial of justice” and the risk of a death sentence.[1] The court further found that the Convention requires Poland to seek assurances from the U.S. “that (Nashiri) will not be subjected to the death penalty.” Poland’s request to appeal was rejected.

In February, 2015, Foreign Minister Grzegorz Schetyna announced that Poland would make the required payments, stating: “We will abide by this ruling because we are a law-abiding country….” Then, on March 31, 2015, Christian Lowe of Reuters reported that Poland’s government, in compliance with the court’s order, had directed an official note to U.S. authorities seeking assurances that he will not be executed. The Polish Foreign Ministry stated that it plans to seek further assurances that neither Nashiri nor Zubaydah would be exposed to a “flagrant denial of justice.”

This last request, if made, certainly will fall on deaf American ears. Zubaydah, after all, has been imprisoned for over 13 years, during which time he has neither been charged nor tried, nor has counsel even been assigned to him, despite his many requests. A March 27, 2015 piece by the Miami Herald’s Carol Rosenberg listed the 7 remaining prosecutions envisioned by war court prosecutors, and Zubaydah was not included. As for the military commission circus which has been prosecuting Nashiri since 2011, please refer to my e-book, My Week at Guantánamo’s War Court, and my various articles and blog posts which appear on this site. In sum, we have been inflicting “flagrant denial(s) of justice” on both men for years, and no basis exists for believing that we will stop.

Unlike Poland, the U.S.—which often trumpets its “exceptionalism”—seems unwilling to be taught. When, at long last, the Senate Select Committee on Intelligence (SSCI) last December was able to release the redacted Executive Summary (ES) for its 6,700 page report on its study of the CIA’s Detention and Interrogation Program, it provided a rare chance for Americans to learn of the atrocities perpetrated by the CIA, in secret but in our name. However, four polls following issuance of the ES reported that from 51 to a shocking 59 per cent consider the CIA’s treatment of suspected terrorists justified. This is true, even though neither the 100-plus page statement of the SSCI minority’s views nor the similarly lengthy response by the CIA denies that we tortured plenty of people.

Yet the U.S. representative to the UN Committee Against Torture declared last November that: “We believe that torture, and cruel, inhuman and degrading treatment and punishment are forbidden in all places, at all times, with no exceptions.” The chasm between this statement and what the polls revealed may simply highlight the difference between an aspirational commitment by the Obama Administration and what most of our people really think. Even so, it brings to mind Ambrose Bierce’s definition of “hypocrite” in his famous “The Devil’s Dictionary”: “One who, professing virtues that he does not respect, secures the advantage of seeming to be what he despises.”
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[1] The commissions, at the time, were governed by Bush’s Military Order of November 13, 2001 and Rumsfeld’s Military Commission Order No. 1; in June, 2006 the U.S. Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557, 625, ruled that they “lacked power to proceed,” since their procedures violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions. As a result, Bush signed the Military Commission Act (MCA) of 2006, and President Obama approved a reformed MCA of 2009, which applies to Nashiri’s prosecution. See the main text for my opinions on the Nashiri case.

In my From Tragedy to Farce—Redux post, I described how then-military commission Judge Pohl (Col. Vance Spath now presides; see my post: Pohl Replaces Self as Nashiri Trial Judge) had ordered the prosecution to produce a lengthy list of documents and categories of information regarding the CIA’s interrogation and torture of Nashiri at various secret black sites over a four-year period. One insider characterized the order to the Miami Herald’s Carol Rosenberg thusly: “It’s a nuclear bomb that may shut down the case,” because it required production of so many of the agency’s closely guarded secrets. The possibility that the CIA simply might refuse to comply was widely considered.

But not so fast. The government sought reconsideration from Pohl, which he granted while relaxing his original order in various respects. In crucial sections he reminded prosecution lawyers of something they (and at least that one excitable insider, it seems) evidently had overlooked: that a commission evidence rule granted to the government the broad ability to provide content summaries in lieu of actual documents. See June 24, 2014 Order AE 120AA in Nashiri case docket (http://www.mc.mil/CASES.aspx). The faithfulness of earlier CIA summaries to the truth, you may recall, had been challenged by Kammen: back in June, 2013, while in full cry, he argued to Judge Pohl: “The CIA certainly has a history of misleading prosecutors…(and it has) a history of misleading judges…and I think that pattern is continuing…. [W]hat we have now…is a series of summaries that…we will demonstrate are false…. [T]he summaries are false, they are misleading, they are woefully inadequate for any meaningful presentation in a capital trial.”

Another obstacle for Kammen lurked in a Catch-22 arising from that ability of the government to substitute summaries for the underlying documents. The military judge has authority to decide upon the adequacy of summaries, but once he has done that in specific instances he is prohibited by commission law from reconsidering his decision, even if facts coming to light later contradict the approved summaries. (Kammen on August 4, 2014 pronounced the summaries produced by then in response to Pohl’s CIA-related orders as “virtually useless.”)

Pohl had devised a workaround for this quirk in the military commission rules by allowing the defense to seek more discovery (production of documents and other information) from the government on the subject matter of approved summaries questioned by the defense. That, according to Kammen, was the genesis of the defense motion to compel the government to produce the information and documents on the CIA’s treatment of Nashiri. Such further discovery would enable the defense to argue in court about any inconsistency between approved summaries and this newly produced information. But without any deadline for the government to provide that new discovery in what lead prosecutor Gen. Mark Martins describes as an “iterative, back-and-forth process” (which to Kammen “implies a slow trickle of discovery, right up to the eve of trial), the defense attorney predicted disaster. Given the defense’s scarce resources, Kammen asked how the defense could comply with the court’s timetable for the case in light of this drawn-out process. (See http://www.lawfareblog.com/2014/08/84-session-5-things-120-part-two/ — Aug. 4, 2014 transcript of proceedings, pgs. 4778-4787.) And, of course, much of the new discovery doubtless will be provided in summary form, leading a body to wonder whether a devil’s circle has been created. If additional discovery is required to show the inaccuracy of those new summaries, and the CIA again produces only more summaries that may not be accurate and sufficiently detailed according to the defense, where and when does that circle end?

All this may seem to add up to a story only a lawyer could love. But what the CIA inflicted on Nashiri is vital to his case and his fate, both to enable the defense to challenge the admissibility of statements Nashiri made while a captive, and to mitigate his sentence (recall that death is one possibility) if he is convicted.

Back in August 2014, Kammen continued to push for production of the underlying documents, even though commission law stands in his way. But completely outside the existing rules, I wonder about a judicial system in which the defense team, each member of which has Top Secret clearance at least and is bound by both a court order and, potentially, criminal law not to disclose classified information, may not be allowed to see those documents. And why they should not have the complete, unredacted 6,000 page-plus report on the CIA’s interrogation, detention and torture of captives by the CIA’s Senate Select Committee on Intelligence? Kammen and others suggest a reason: the documents and report would reveal cruelties far more terrible than we know. Not simply water-boarding, mock executions and Enhanced Interrogation Techniques (all of which were inflicted on Nashiri, the first two while he was naked and blindfolded), but far worse torture techniques.

I’ll continue to provide updates on this crucial battle.

Not only is the al Darbi case curious, but its outcome may greatly complicate Nashiri’s future. Here’s how and why.

On February 5, 2014, the Convening Authority of the Military Commissions referred charges against al Darbi to a commission. All charges involved his major role in the October 2002 attack off the coast of Yemen by an explosives-packed motorboat on the French supertanker MV Limburg, which was under charter to a Malaysian firm and laden with Iranian oil. The strike killed one person, injured a dozen others, and spilled 400,000 barrels of crude oil into the sea. All told, it caused about $45 million in damage, and shipping in the Gulf of Aden temporarily was shut down. But how does al Darbi’s case wind up as a prosecution for war crimes in a U.S. military commission? And were his alleged offenses against non-U.S. property owners and personnel part of the armed conflict between the U.S. and al Qaeda going on at the time? You’ll recall that Nashiri also has been charged with regard to the Limburg attack, and the same questions apply to his case. (See http://justsecurity.org/6807/al-qaeda-armed-conflict-france-malaysia-legal-question-heart-al-darbi-case ) But the cases have taken diametrically opposed routes with regard to those questions.

Despite the questions, only two weeks after the charges against him were referred, al Darbi pleaded guilty. Such a small time window powerfully suggests that negotiations on the plea deal had started well before the referral, and that the timing of the referral and the entry of the plea were orchestrated. In the bargain, al Darbi agreed to cooperate with prosecutors, which almost certainly means that he will testify against Nashiri with regard to the Limburg attack. To ensure such cooperation, his sentencing was deferred for over three years. (See http://justsecurity.org/?s=Al+Darbi+Pleads+Guilty ) Except, that is, for one thing: Judge Spath, who now presides over Nashiri’s military commission case, while facing a defense motion to dismiss all Limburg-related charges which pursued the issues I have described, dismissed them on a different basis altogether. (See AE 168G/AE 241C Order in Nashiri case docket: http://www.mc.mil/CASES.aspx; http://www.miamiherald.com/news/nation-world/world/americas/article1979349.html )

The government—no surprise—filed an appeal of the dismissal order to the Court of Military Commission Review (CMCR). To liven up matters further, Nashiri’s legal team is trying to disqualify two of the three members of the CMCR on technical though important grounds. That effort was turned back by the CMCR, but Nashiri’s team has taken the matter to the D.C. Circuit Court of Appeals. (See http://justsecurity.org/16395/al-nashiri-cmcr-limburg-charges ) Argument of the appeal before the CMCR has been stayed by the circuit court, pending resolution of the disqualification effort. (See http://justsecurity.org/17362/d-c-circuit-postpones-tomorrows-cmcr-hearing-al-nashiri )

One wonders whether, given these developments, al Darbi and his counsel are so happy with their plea bargain, which some predict will result in al Darbi’s being sentenced for 9-15 additional years. (See http://justsecurity.org/?s=Al+Darbi+Pleads+Guilty ) But the same question might be posed to the government lawyers, who accepted a deal banking on having al Darbi as an invaluable witness at Nashiri’s trial for the Limburg charges. No doubt, though, the attorneys for both sides were aware of the legal questions surrounding the military commission’s ability to try the Limburg charges before the deal, and took them into account when making it.

Stay tuned …