Santa Clara University School of Law professor Beth Van Schaack—a longtime expert and scholar in international criminal and human rights law—will be attending the arraignment of Abd Al-Ramin Al-Nashiri, the first defendant to be prosecuted before a Guantanamo Bay military tribunal under the Obama Administration. Van Schaack, who was on the defense team of convicted U.S. terrorist John Walker Lindh, says the case brings up many provocative due-process and international law issues. She will be watching the case to see if it proceeds in accordance with international and domestic due-process principles; to see how the Obama administration does or does not change military commission practices; and to see how the commission handles challenges to its jurisdiction.
To follow Professor Van Schaack’s blog posts about the arraignment, go to the IntlLawGrrls blog at intlawgrrls.blogspot.com/.
Below are some key legal and historical points of the case, provided by Professor Van Schaack.
U.S. v. Abd al-Ramin Al-Nashiri
Beth Van Schaack
Santa Clara University School of Law
- The case concerns three maritime attacks: two against military objectives (USS Cole and The Sullivans in 2000) and one against a civilian tanker (MV Lindburg in 2002).
- It will be the first prosecution by military commission since President Obama reversed course in March 2011 on the propriety of trial by military commission versus federal court.
- It is a capital case, raising acute due process concerns given the untested procedures to be applied, the torture allegations stemming from the immediate aftermath of his 2002 capture (which constitutes exculpatory evidence), and the loose evidentiary rules allowing double and triple hearsay into evidence.
- The case raises legal issues that are unique as compared to other detainees, namely that the most important “war crimes” of which he is accused (the attack on USS Cole) were allegedly committed prior to 9-11 and the initiation of an armed conflict with Al Qaida. As such, the commission—which by law can only prosecute crimes committed in the context of an armed conflict—may actually lack jurisdiction over the Cole attack and the failed The Sullivans attack.
- Even if an armed conflict had commenced as early as 2000, the case involves two attacks against “military objectives,” defined by the law of armed conflict as “those objects which by their nature, location, purpose of use make an effective contribution to military action…” Attacks on military objectives cannot be war crimes (although they may be crimes under the operative domestic law).
- Several important motions and open issues are pending and will likely be addressed at the hearing, including:
- A poignant motion from the defense for a declaration of whether Nashiri will simply be detained for the rest of his life if he is acquitted of the criminal charges against him;
- A motion demanding that military officials cease reading attorney-client protected communications from the detainees’ legal representatives to their clients;
- A motion on employing and funding expert testimony; and
- The practice of protective orders.
- The case will put the question of CIA torture back in the public eye; the government admits to waterboarding Nashiri. Other torture allegations include threats to his family, threats that he would be sodomized or shot in the head, threats that his family members would be raped, threats with power tools including a drill, being pulled to standing with his arms behind his back, having someone stand on his shackles, and days of being shackled in stress positions, or being hooded and naked. The CIA’s Inspector General Report and a confidential but leaked ICRC Report catalog that these so-called Enhanced Interrogation Techniques were employed against Nashiri in November and December 4, 2002.
- The procedural issues will be intensely contested. Under normal federal law, “death is different,” meaning that the Constitution mandates that courts adopt extraordinary measures to ensure fairness in death penalty cases. It remains to be seen whether this same ethos will govern capital cases before military commissions.
- Counsel for a number of high value detainees have submitted a letter up the chain of command complaining that Read Admiral David Woods, the commander of GTMO, has authorized violations of the attorney-client privilege, a fundamental tenet of our legal system.