The Pentagon on Monday published its long awaited regulations for military commissions, the Obama administration era handbook for how to do a war crimes trial, including a sample prosecution that charged a captive with murder as well as “pillaging” by stealing a Rolex watch, six goats and $20 American.
The Defense Department released the document two days ahead of the arraignment of a Saudi-born captive charged with murder and terrorism for al Qaida’s suicide bombing of the USS Cole off Yemen. Seventeen U.S. sailors were killed in the October 2000 terror attack.
Abd al Rahim al Nashiri, 46, makes his first appearance at the war court on Wednesday, nine years after he disappeared into the CIA’s secret prison network and was questioned with enhanced interrogation techniques that included waterboarding and having a drill revved near his head.
Monday morning, the Pentagon airlifted here five relatives of Cole bombing victims along with two dozen reporters to watch the proceedings. Also on board the flight were defense and prosecution attorneys as well as the case judge, Army Col. James Pohl, who soon after landing headed into a chambers conference at the war court compound, Camp Justice.
Almost simultaneously, the document appeared on the war court’s new nearly $500,000 website, numbering 202 pages and including some changes to procedures. For example, each case’s military judge now has the authority to approve the costs of a so-called “learned counsel,” typically a civilian defense attorney with extensive experience defending capital murder cases. It also outlined procedures through which observers could protest, through a chief clerk, a judge’s decision to declare an aspect of a trial as “protected.”
Both issues could be relevant in the upcoming prosecution of Nashiri, for whom the Pentagon is seeking the death penalty. Because the Pentagon is still preparing the Sept. 11 mass murder trial for five captives here, Nashiri’s case is shaping up to be the first capital case of the war court that President George W. Bush created and President Barack Obama reformed in collaboration with Congress.
The Pentagon’s new Deputy Secretary of Defense, Ashton B. Carter, signed the new document on Sunday. He said in a foreword that it provided guidance at times that differed from the way the U.S. military court martials its own troops. “That difference is necessitated by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need.”
Legal experts were poring over the document Monday night.
Meantime, Human Rights Watch attorney Andrea Prasow called the timing troubling.
“The very idea that new rules could be issued moments before someone is arraigned to face the death penalty offends any notion of due process,” said Prasow, who has worked on war court defense cases. “The stamp of illegitimacy has been firmly affixed to Nashiri’s case.”
A trial date has yet to be set. First, the judge must rule on a series of requests from defense and prosecution attorneys on a range of issues that will set the conditions for the trial before a jury of senior U.S. military officers. They include whether prison camp staff can read correspondence between Nashiri and his defenders that outline trial strategy, whether the defenders can shield from prosecutors what experts they need and whether the jury can be told that, even if acquitted, the captive might spend the rest of his life as a war prisoner.
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