A U.S. Military Commission at Guantanamo Bay, Cuba has scheduled pre-trial hearings next week in the case against Abd al-Rahim al-Nashiri, who allegedly masterminded the 2000 USS Cole bombing that killed 17 U.S. sailors off the coast of Yemen.

At pre-trial hearings defense and prosecution lawyers routinely debate evidentiary, jurisdictional, logistical and other issues, and deal with matters such as what evidence will be admissible at trial, which witnesses will be called and when, whether the court possesses jurisdiction to hear the case, and what date to set for the trial to commence.

What is typical (or atypical) about the al Nashiri pre-trial hearings, about his case itself, or about his plight before other tribunals that have or could exercise jurisdiction? Is his case more complex than others?

Multiple courts have either resolved issues related to charges against al Nashiri or have sought to resolve such issue, or to exercise such jurisdiction. These proceedings appear to have extended beyond routine evidentiary, jurisdictional or logistical issues.

Though the military commission judge identified issues to be debated next week (see his 12 August 2016 docketing order below), it is unclear what will be heard. Indeed it is unclear whether the hearings will go forward. al Nashiri hearings were stayed for almost a year, and when they were set to resume in April, they were abruptly postponed until now. Though many dozens of us are gathered in Washington, DC for a post-Labor Day flight from Andrews Air Force Base to Guantanamo, the hearings can be cancelled at any moment, even after we touch down at Guantanamo Tuesday afternoon.

The stakes are high, as proceedings in different courts could result in one, more or all the charges against al Nashiri being permanently dismissed.

al-Nashiri is charged with multiple war crimes, including perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, attacking civilians, and attacking civilian objects. He faces the death penalty.

Courts’ jurisdiction

Several courts have exercised or sought to exercise jurisdiction over al Nashiri, that is, the courts have or have sought to resolve matters related to his detention or his alleged crimes.

First is the military commission itself at Guantanamo Bay. al Nashiri was picked up in 2002, held in secret CIA camps for about 4 years, taken to Guantanamo Bay in 2006, and arraigned in 2001 in a military commission. In that commission, he is charged with war crimes associated with the U.S.S. Cole and other ships. This commission is the primary court exercising jurisdiction over al Nashiri.

The D.C. Circuit Court of Appeals has also exercised jurisdiction, ruling on 30 August 2016 that it would not halt the Guantanamo commission against him. The defense had asked the appeals court stop the commission because the commission was not lawfully able to exercise jurisdiction. The appeals court chose not to decide the merits of the matter unless al Nashiri is convicted, at which time the appeals court would decide whether the commission had conducted a trial without jurisdiction.

The Court of Military Commissions Review (CMCR) issued a ruling in his Military Commission case in June 2016, and one in July.

The U.S. District Court for the Southern District of New York also has had a stake, as al Nashiri was indicted in that district but the case has not moved forward because Congress prohibited moving detainees to the U.S. for trial.

The European Court of Human Rights ruled that the government of Poland breached international human rights law when it permitted the U.S. to detain al Nashiri on Polish soil, where he was tortured. The court ordered Poland to pay al Nashiri over $250,000.

At the pre-trial hearings this week, the issue of jurisdiction will certainly arise.

Pre-trial Issues in his case

al Nashiri’s pre-trial hearings have touched on many issues.

Front and center recently have been jurisdictional issues, such as those discussed above handled by the DC Circuit and the CMCR, and also raised in the commissions.

Pre-trial issues have related to his treatment while in CIA black sites beginning in 2002 for 4 years, where the Senate Torture Report and other sources (including al Nashiri himself) have identified the following practices against al Nashiri – waterboarding (admitted by the government), mock executions, stress positions, and threats of sexual violence against his mother. Should a person be tried on criminal charges after being subjected to this treatment? Can any statements made by al Nashiri after such treatment be allowed as evidence in the trial against him?

Other pre-trial issues in his case or that may be raised include:

• whether the U.S. can use as evidence the testimony of a man the U.S. killed (alleged co-conspirator Fahd al-Quso);
• whether and to what extent the U.S. Constitution applies to al Nashiri’s military commission;
• whether the right to a speedy trial was violated (over 13 years since al Nashiri was taken into custody and over 9 years since arriving at Guantanamo Bay — with the trial itself not commencing as of 2016 and no trial date set);
• whether his right to humane treatment was violated (even regarding his Guantanamo housing situation – during these proceedings);
• his right to have access to classified and other information that might be used against him at trial;
• whether high-ranking military members engaged in undue influence;
• the timely acquisition of defense lawyers’ security clearances; and
• al Nashiri’s physical and mental health.

Much remains to be resolved before any actual trial is held.

My four 2016 summer trips to Cuba

This will be my fourth visit to Cuba in as many months, with three visits to Guantanamo Bay and one to Havana.

My first visit to Guantanamo Bay in this cycle was to monitor U.S. Military Commission pre-trial hearings in the case against Hadi al Iraqi, who is alleged to have been a high-ranking al Qaeda Iraq member, and to have liaised between al Qaeda Iraq and the Taliban. Hs is charged with various war crimes.

My Hadi al Iraqi monitoring mission was through the Military Commission Observation Project of the Program in International Human Rights Law of Indiana University McKinney School of Law. Our project seeks to attend, observe, analyze, critique and report on U.S. Military Commissions. We are producing the Guantanamo Bay Fair Trial Manual, which is used and usable by any person interested in assessing whether the rights and interests of all military commission stakeholders are being afforded to them. We are interested in the rights of the defendants. We are also interested in the rights and interests of the prosecution, the victims and their families, the media, the guards and other prison personnel, witnesses, and others.

On my second trip to Cuba this summer I was part of a delegation from the National Bar Association (NBA), which is the organization principally for African American lawyers, judges, law professors, and other legal professionals. An NBA conference was held jointly with the Cuban bar association, focusing on a wide range of U.S. interests and Cuban interests, and interests affecting both countries. The topic of Guantanamo Bay came up repeatedly in our discussions with Cuban judges, lawyers and law professors. I also gave a lecture at the U.S. Embassy – Havana.

My third trip to Cuba this summer was in August for a Guantanamo media tour. When I arrived on Guantanamo at noon on Saturday, 13 August 2016, 76 detainees were imprisoned there. When I left Guantanamo at noon the next day, Sunday the 14^th, only 61 detainees remained. During the darkness of night, 15 detainees were released to the United Arab Emirates (UAE). That resettlement marked a 20% drop in the Guantanamo Bay detention population over night.

Writing projects of mine I was researching at Guantanamo on that third trip include The Guantanamo Bay Reader and a contributions to The Indiana Lawyer.

This fourth trip to Cuba is to monitor the al Nashiri hearings pursuant to our Indiana McKinney School of Law observation program.

More about all of the above (and below) is available on http://www.GitmoObserver.com.

Docketing Order – Motions on the schedule to be heard

The Military Judge in the al Nashiri case on 12 August 2016 issues a Revised Docketing order, outlining the proposed program for the 3 days of scheduled hearings this week (7 – 9 September 2016). Here is that order.

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