Today was a shortened day. Hearings ran until the lunch recess. The hearing after lunch was to be classified and then they would discuss scheduling for the next couple of months. No more hearings are scheduled for this week.
The Hearings: Appearance
Mr. Nashiri declined to be in attendance today. He was present yesterday and on Monday. The defense went through a procedure to demonstrate that Mr. Nashiri’s absence was voluntary, for the record. This included having the staff judge advocate at Gitmo testify of the process whereby the accused was advised of his commissions for the day, advised of his rights, executed a voluntary waiver, used an interpreter, etc. I think it was well established that Mr. Nashiri chose on his own accord to not attend and it was clear from the evidence presented by both parties that it was a voluntary choice.
The Hearings: Decision on Funding for Defense Contractor
Judge Spath granted the request for 175 more hours of Mr. Assad’s time. From the arguments made yesterday, I feel this is in line with what was presented by both parties (see yesterday’s post for the details and context).
The Hearings: Tu Quoque
Tu Quoque (“you also”, in Latin), or as we sometimes say on the homestead “that’s the pot calling the kettle black”, means “a person is guilty of the very thing of which they accuse another”. This doctrine was argued by the defense in trying to rationalize the alleged actions of Mr. Nashiri against the U.S.S. Cole. Defense presented a video found online, made by the US Government shortly after WWII, which depicted a Campbell missile. The 20 minute clip we were shown depicted the U.S. Navy experimenting with concealed war time ships disguised as merchant vessels to inflict harm on an enemy. I noted during the film that it was only demonstrating experimental tests, not actual use in war, as they were stating the attack on the U.S.S. Cole was performed. Here, I noticed for the first time in the trial, that the parties and the judge were presuming Mr. Nashiri to be guilty.
The Judge asked the defense how their client lawfully engaged in war. Did the client engage in acts similar to these soldiers in WWII? Judge Spath wanted to know how defendant is a soldier and with what recognized armed force?
The response by the defense stated that the force was al Qaeda and we were at war with them at the time of the attack and thus the USS Cole was a lawful enemy target. The Prosecution pointed out that the doctrine of Tu Quoque is not recognized in any forum and that the video does not show actual use in war of the Campbell missile. I think the real issue here that was missed is that at the crux of the defense’s argument in this motion is the assumption the defendant was responsible, in fact, for the attack on the U.S.S. Cole.
The Hearings: MRI
Defense asked the Judge to order an MRI of Mr. Nashiri’s brain. Strong arguments were made in support of the rationale, however, it came down to a procedural issue in that Defense did not go to the Convening Authority first. Judge Spath was correct in telling the Defense to get a denial from the Convening Authority first and then he will step in. He was clear in wanting the process in place followed.
A consideration for the future though is the manner in which the MRI will be performed. Mr. Nashiri cannot go the U.S. for one. There is not one at Gitmo, currently. Thus, one would have to be brought in at great expense.
The Hearings: Skyping
Only part of this hearing was open as the other half contained classified information. Defense moved that Mr. Nashiri be able to contact his parents via live video chat in that it would aid in his treatment of medical issues. Mr. Nashiri is currently not allowed to contact his parents in that manner. This is due in part because of medical concerns. A declaration was produced to that effect to the Defense counsel by the Prosecution. Defense further wants a chance to cross-examine the doctor who executed the declaration if the prosecution is treating the doctor as a witness.
Prosecution argued that a common sense standard prevails and that defense could not meet the standard set in established case law (a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs, Estelle v. Gamble). Mr. Nashiri still has other means to communicate with family, such as letters. He is also a high value detainee who needs his information flow restricted.
I wasn’t quite sure what the real issue was in the public portion. Arguments moved between whether or not there was a medical reasoning for Mr. Nashiri not being allowed Skype, if they were arguing that he was being treated unfairly in not being able to have face to face communication with his elderly parents, and if he was being shown indifference to serious medical needs.
Close of Day
Lunch was called at this point and the public spectators were dismissed for the week. Today there was only one other NGO and I didn’t get a chance to speak with him. A couple of soldiers accidentally came into the theater, thinking it was the location of their function. When they heard what we were viewing, they couldn’t believe the U.S.S. Cole matters were still on-going. The sheer amount of people who are unaware emphasizes the importance of this mission. Tomorrow I will blog about the manual and checklist we were provided with and some of my final thoughts on my observations.