The man accused of orchestrating the bombing of the USS Cole in Yemen in 2000 will be arraigned Wednesday at the Guantanamo Bay Naval Base. He is the first Guantanamo detainee to have his case tried under the Obama administration's revamped rules for military commissions, and he could be put to death if he is found guilty.
The trial of Abd al-Rahim al-Nashiri marks a series of firsts. This is the first military commission case entirely initiated by the Obama administration. He is the first detainee to be subjected to new rules that are supposed to make these military trials more transparent.
"It is the first high-value, high-profile detainee to go through this process," said Matt Waxman, who was in charge of detainee affairs during the Bush administration and is now a professor at Columbia University Law School. "And the case involves the death penalty, so, if we get to that stage, that's going to raise all kinds of interesting and very, very controversial legal, strategic and diplomatic issues."
The military commissions haven't had to decide a death penalty case before, either. So, amid all these firsts, Wednesday's trial has become a test of sorts — a test of whether a separate military justice system in Guantanamo can provide the same impartial justice as a criminal court in the United States.
Add to all that: The case of al-Nashiri is complicated, too. The 46-year-old is accused of planning the bombing of the USS Cole and a handful of other attacks. The Cole was refueling in Yemen in 2000 when a rubber boat full of explosives drew up alongside and detonated: 17 servicemen and servicewomen died in the attack, and scores were injured.
For his alleged role, al-Nashiri is being charged with war crimes — including terrorism, conspiracy and murder. The problem is that the attack happened before Congress passed an authorization to use military force against al-Qaida. So that makes charging him with war crimes potentially problematic.
Another issue: Al-Nashiri was arrested in 2002 and then disappeared for nearly four years. The CIA has since acknowledged that he was in its custody and that he was waterboarded and subjected to other enhanced interrogation techniques. Among other things, a drill was run near his head, and his family was threatened. That means the military commission will have to grapple with torture in this case as well. For people tracking the progress of Guantanamo detainees, there will be a more basic milestone Wednesday: When al-Nashiri walks into the courtroom, it will be the first time he's been seen in public in nine years.
'Not Fair Or Legitimate'
Richard Kammen, al-Nashiri's lead attorney, was hired as what is known as "learned counsel." In other words, he is a death penalty expert. In federal courts, when it is a capital case, defendants have to get a lawyer who knows how to try a death penalty case. The military commissions now have that provision, too. Al-Nashiri's case is the first time that regulation will be in force.
Kammen met reporters in an empty airplane hangar just a stone's throw from the courthouse Tuesday. He is quick to offer a list of reasons why he thinks the deck is stacked against his client. For example, even though the arraignment is Wednesday, he says the government has yet to give the defense any discovery. The Pentagon released the more than 200 pages of new rules governing the commissions, but that was just two days ago.
Kammen said the first time he saw the new rules was this week.
"This is so completely unorthodox and so different than what would occur in a federal court," he told reporters. "We're all going to be dressed in suits; it is going to look like a court. It is not a real court; this is not fair or legitimate. It is a court organized to convict and a court organized to kill."
The Obama administration and key military officials disagree. Brig. Gen. Mark Martins is the chief prosecutor of military commissions. Essentially his role is like that of a U.S. attorney in the federal court system: Martins is the man who decides which detainees will have a military commission trial and when.
As he sees it, two acts of Congress, a Supreme Court decision and an executive review have helped craft a system to try terrorists, and all that input has created a system that is fair.
"Reasonable people looking at this system will see that it really will withstand scrutiny," he said.
The scrutiny begins in earnest Wednesday, and not just because there will be people in the courtroom watching the proceedings. A closed-circuit television feed will broadcast the arraignment to the United States for the first time. It can be seen at Fort Meade, Md., and the public is allowed to attend. There will be about 100 seats.