The US Department of Defense (DoD) announced [2] April 20 that high-value Guantánamo Bay [3] detainee Abd al-Rahim al-Nashiri [4] will be subject to capital charges and tried in a military court. According to the Pentagon, the chief prosecutor for the DoD's Office of Military Commissions [5] plans to charge al-Nashiri with orchestrating the 2000 attack on the USS Cole that left 17 dead and 40 injured. The office will also bring charges in connection with an attack that same year on a French oil freighter that claimed the life of one crewmember and spilled 90,000 barrels of oil into the Gulf of Aden.
The American Civil Liberties Union (ACLU) criticized [6] the DoD's decision to use a military tribunal, calling the system "broken." ACLU National Security Project Director Hina Shamsi said the case is especially troubling given the looming threat of capital punishment:
We are deeply disturbed that the Obama administration has chosen to use the military commissions to try a capital case in which much of the evidence is reportedly based on hearsay and therefore not reliable enough to be admissible in federal court. Allowing hearsay is a backdoor way of allowing evidence that may have been obtained through torture.
The announcement follows reports last August indicating that the Obama administration would not pursue a military trial for al-Nashiri, a move the ACLU said demonstrates the "inherent unfairness of the military commissions." The DoD refuted the reports at the time.
Complicating the prosecution is the controversial history of al-Nashiri's detention. Former Central Intelligence Agency (CIA) agents confirmed in 2010 the existence of a secret CIA black site in Poland, where al-Nashiri was allegedly waterboarded and subjected to mock executions. According to one agent, al-Nashiri was stripped naked and hooded before a gun and a drill were held close to his head. The allegations led the Open Society Justice Initiative (OSJI [7]) to launch an abuse investigation in September. Section 948r of the Military Commissions Act of 2009 prohibits the use in military courts of evidence obtained through "torture or cruel, degrading or inhuman treatment," a provision that could implicate potential limitations on the prosecutors' ability to use certain evidence if it can be established that al-Nashiri was subjected to such treatment in Poland or at Gitmo. Former Polish prime minister Leszek Miller denied any knowledge of such a facility. Polish prosecutors, who began investigating the potential existence of the Polish CIA prison in 2008, asked US officials last month to question al-Nashiri and fellow detainee Abu Zubaydah about the existence of the facility, saying their testimony was essential to establishing its existence.
From Jurist [8], April 20. Used with permission.
