The USA is twisting time and reality – and torturing its own legal system – in trying to prosecute a man, Nashiri, before a military commission for a “war crime”. The Saudi allegedly masterminded the bomb attack on the USS Cole warship in a Yemeni port in October 2000, which killed 17 Americans. He has been held for a decade, half of it in secret CIA prisons around the world, before finally being charged.
US torture of legality continues
By Robert Briggs*
On 9 November 2011 there was an arraignment before a military commission at Guantánamo for Abd al-Rahim al-Nashiri, a Saudi whose case is remarkably like that of Ahmed Ghailani, tried and convicted in the US federal court for similar terrorism (non-war) offences.
Nashiri is charged with murder: causing the deaths of 17 American sailors in October 2000 in an attack on a US warship in the port of Aden, in Yemen, and also for killing a non-American crewman on a French tanker, an event with no US connection.
Nashiri was captured in Dubai in 2002, and was transferred to Guantanamo Bay in 2006.
The military prosecution of Nashiri represents a new level of chutzpah by the US government: the death penalty trial of a man the government does not deny it tortured. His torture has been confirmed by the CIA Inspector-General and is also being investigated in Poland, where Nashiri has been accorded “victim” status.
Indeed, Nashiri is being subjected to a military trial in large part because his torture makes conviction in a US federal court, with full constitutional protections, problematic.
Nashiri is accused of masterminding al Qaida’s suicide bombing of the USS Cole in 2000. This attack occurred before the 9/11 aircraft attacks in late-2001, before the Authorisation to Use Military Force was adopted by the US Congress and before legislation purporting to retrospectively criminalise terror attacks as “war crimes” had been passed by Congress.
The acts occurred outside a theatre of war, before any “war” existed, so it’s hard to see how they can be punished as “war crimes” under the law of war, and specifically, under the Geneva Conventions which, as ratified treaties, are a part of US law under the US Constitution.
Nashiri could of course be validly prosecuted under domestic US law, as were other USS Cole bombers but, by using a military tribunal, the US Government hopes to evade constitutional rights, introduce evidence obtained by torture, and escape usual civilian court review.
It is worth noting that Nashiri has already been tried in Yemen for the Cole bombings and sentenced to death. That 2004 conviction is subject to challenge, as it was held in absentia after the US failed to make the defendant available for trial. The Yemeni conviction might also raise issues of double jeopardy in a second civil trial.
Gabor Roma of Human Rights First has pointed out some of the many problems with the prosecution, http://www.humanrightsfirst.org/2011/11/03/al-nashiri-case-will-highlight-all-that-is-wrong-with-military-commissions/. Almost none of these are being reported by the media
According to news reports, Nashiri’s November 2011 hearing marked “the first time he’s been seen in public since his 2002 capture in the Arabian Gulf region and disappearance into a network of secret CIA prisons,” also known as torture sites, operated in a number of collaborating countries such as Thailand, Poland and Lithuania.
A CIA Inspector-General’s report documented Nashiri’s torture, videotapes of which were destroyed by the CIA – another act that would attract judicial attention if a civil trial were held. US agents also loaded a gun and revved a drill near Nashiri’s head, well-established war crimes (along with water torture, which he also suffered) for which US officials themselves could be charged.
The trial is scheduled for November 2012.
- Robert, who is qualified as a lawyer in Australia and also in the USA, has closely monitored activities at Guantanamo Bay for the past decade. He is a member of CLA.
- Kevin Jon Heller, of the University of Melbourne, has also written in detail on the Nashiri case: http://opiniojuris.org/2011/09/28/the-united-states-radical-charges-against-al-nashiri/