Arriving at Guantanamo Bay is a bit like coming out of the other end of a warp-speed jump in a sci-fi movie. All of a sudden, you find yourself in a world that is beyond the ability of most people to visit. And while there are familiar sights, like the on-base McDonald's, there are also things like the pre-placed stickers on phones at the media desk reading "use of this telephone constitutes consent to monitoring" – a reminder of the extreme secrecy that permeates every element of the world's most notorious indefinite detention facility.
Abd al Rahim al Nashiri, the accused mastermind of the 2000 bombing of the U.S.S. Cole, faced his latest round of pre-trial hearings here this week. Nashiri is charged with killing 18 people and will be tried before a military commission, the Guantanamo justice system created by President Bush in 2001 and approved by Congress in 2006 and 2009 after federal court challenges. He faces the death penalty if found guilty.
After being captured in 2002, Nashiri was held by the CIA, who tortured him in gruesome ways. He was waterboarded, threatened with sodomy and made to believe his female relatives would be sexually assaulted in front of him. A hand-drill was revved near him while he stood naked and hooded, and he was threatened with an unloaded gun.
His torture at the hands of U.S. officials will likely play a significant role in his trial, and, should he be found guilty, in mitigating his sentence. One of the issues debated this week was whether he will be excluded from closed-to-the-public, pre-trial sessions that include discussions of classified information. The prosecution argued that while that no evidence will be kept from him at trial, Nashiri's ability to hear classified information should be restricted because he does not have a security clearance. Nashiri's lead attorney, Richard Kammen, countered that Nashiri needs to hear all evidence presented in the pre-trial phase to have a fair trial. "Let's say in a hearing the government presents something in good faith that is simply untrue," said Kammen. "Let's say some agency gives them incorrect information. He will never be in a position to say to us, 'That's not true.' And waiting 'til trial is way, way, way too late in a capital case."
Also at issue this week is the applicability of the Sixth Amendment to Nashiri's case. The defense argued that Nashiri should have the right to confront his accusers – a constitutional standard designed to prevent hearsay evidence. The military commission rules, however, allow for greater leniency for hearsay as evidence as long as it is "material, probative, reliable and the interests of justice will be served by admission."
Whether and to what extent the Constitution applies at Guantanamo remains an open question. The military judge in this case, Army Col. James Pohl, has previously agreed with the prosecution's argument that constitutional applicability should be decided on a case-by-case basis. "The Constitution applies," lead Guantanamo prosecutor Brig. Gen. Mark Martins said in court. "The question is, how does it apply to this particular case?" Martins added, "And the Constitution isn't just the Sixth Amendment" – suggesting that the judge should consider the war powers that Congress had granted the President by passing the Military Commissions Act. The prosecutor also argued that this constitutional issue wasn't "ripe" because it remained theoretical, not based on an actual piece of evidence the government sought to use.
"If I understood General Martins' answers, the Constitution applies except when it doesn't apply," retorted Kammen. "And we don't know when it applies until we get to whenever and we move on down the road."
Nashiri's lawyer argued this week that if his client doesn't have the right of confrontation, that opens the door to interviews done by FBI agents in Yemen around 10 years ago. If the subject of one of these interviews can't be found – or, as with alleged al Qaeda member Fahd al-Quso, has been killed by a U.S. drone strike – their statements could be used to put Nashiri to death, even though they would generally be considered hearsay and excluded from a civilian court. Kammen suggested that this standard could create a perverse incentive for the U.S. government to kill witnesses to keep them from facing cross-examination, while still allowing prosecutors to use their statements as evidence. Martins objected to this line of argument as "beyond the pale."
As often happens at Guantanamo, the court proceedings at times verged on the absurd. On Tuesday, the judge heard arguments about whether or not defense attorney Kammen should be allowed to bring a wire-bound notebook to meetings with his client. The detention commander recently classified the notebook as contraband, on the basis that part of the wire could theoretically be severed and used as a weapon. Though the dangerous-notebook episode is in some ways a trivial affair, it nevertheless highlights a common complaint among defense attorneys here. They often describe the rules on base as unpredictable and arbitrary, saying that an allowable item one visit can somehow transubstantiate into a forbidden item the next if the command on base changes. "You know, almost anything in the imagination –" Kammen was saying, sounding half-flabbergasted, when Judge Pohl interrupted him: "I got it." Kammen finished his sentence: "– of somebody who sees danger everywhere can be a weapon."
Kammen was describing the rules at Guantanamo, but his warning has broader implications. Since 9/11, elected officials in the U.S. have constantly invoked the threat of terrorism as a justification for increasing their authority. You know, almost anything in the imagination of somebody who sees danger everywhere can be a weapon.
At the end of a long day in court on Thursday, Judge Pohl ordered that Nashiri will be excluded from a secret hearing in which attorneys from both sides will discuss classified information which, if disclosed, could "reasonably be expected to damage national security," according to the judge. Though Nashiri won't be barred from seeing any evidence presented against him in the trial, the judge determined that in this pre-trial setting there were "no less restrictive means or reasonable alternative."
Kammen, Nashiri's attorney, objected to the order, claiming it violated numerous treaties to which the U.S. is a party, as well as his client's "right to be free from cruel and unusual punishment" and the Fifth, Sixth and Eighth Amendments to the Constitution. Joanna Baltes, a Department of Justice attorney arguing for the prosecution, disputed Kammen's objection and said Judge Pohl's order to exclude the defendant from this particular type of hearing at this stage was appropriate. She added that he could exclude the defense attorneys from this secret hearing as well, if he wanted to, but that the government wasn't requesting that.
Judge Pohl said that Nashiri would be barred from attending because he wasn't the source of the classified information, though it's unclear whether it's information he would be familiar with or aware of. Kammen told Judge Pohl his client wished to address the court given the seriousness of the issue; the judge denied this request.