Today’s hearings were on the case of  the alleged masterminds of the bombing of the U.S.S. Cole, a naval ship harbored in Yemen in 2000. Judge Pat Riley (Indiana Court of Appeals) from our team is in Guantanamo Bay, sitting in the courtroom. Luke Bielawski and I are at Ft. Meade, Maryland, watching the Guantanamo proceedings on secure videolink.

What’s on for Today? A Question of Reprisals

The Commission hearings covered several interesting issues today. The most interesting issue was the last item discussed.

The defense has requested information about third party civilian deaths and collateral damage caused by US or coalition forces in order to consider a defense of reprisal.

Judge Pohl began by pointing out that the government alleges that reprisal is only a defense if the defendant is a state actor. The defense agreed, but reserved the right to argue that Nashiri is a state actor. The defense claimed that this is relevant to his state of mind and any ability to participate in the governments alleged far-flung conspiracy. This could show extenuation and mitigation.

Judge Pohl followed up on this by asking if you would have to show that the defendant knew about these very specific actions or just that he knew generally of deaths in Muslim countries. If the claim is many civilian deaths, why do you need this level of detail? He knows what he knows. Defense said that if a report verifies what he knew this would prove his state of mind.

Trial counsel responded by stating that Nashiri cannot show several required factors for this defense:

• can’t show he was a state actor
• can’t show he was in the highest levels of government
• cannot show a serious breach of the law of war by the US
• of force in reprisal has to be proportional

This would not be lawful reprisal without these factors. A purpose of reprisal is to ensure future compliance with the law of war, not for revenge.

[Side note: wouldn’t the necessary factor of showing a serious breach of the law of war by the US support producing the evidence? Although, again, Nashiri would have needed to know of that instance].

The defense answered that one example was a prior denial of a request to depose the President of Yemen, who might have shown that Nashiri had a relation to the state. Defense further argued that if it was in Nashiri’s mind as motivation, it is relevant to hear.

The defense raising the possible defense of reprisal by the defense was the biggest surprise I saw in today’s hearings.