From behind triple-pane glass at the back of an enormous courtroom, Island County Prosecutor Greg Banks watched the second week of pre-trial hearings for Abd al Rahim al-Nashiri, an alleged al-Qaeda leader accused of masterminding the bombing of the USS Cole in 2000.
The “high-value detainee” being held at Guantanamo Bay is facing war crimes charges at the military commission, and possibly the death penalty, for the terrorist bombing that killed 17 U.S. sailors and injured many more, as well as the 2002 bombing of a French-flagged oil tanker in Yemen.
In court, Banks said, the alleged terrorist mastermind was underwhelming.
“When he showed up for the first day, he looked like he was ready for the tennis court, dressed in a track suit and T-shirt,” he said.
Al-Nashiri seemed bored, Banks said. The detainee fidgeted and eventually stopped listening to a translation of the hearing through an earpiece. He didn’t come back after the first day.
Legal issues debated
Many aspects of the county prosecutor’s week-long trip in May to Guantanamo Bay, one of the most controversial and presumably secure places on Earth, defied his expectations, he said. He found that Guantanamo Bay, or Gitmo, is a dry, barren and unusual place of contradictions.
Banks took up an offer from the National District Attorney Association to visit Guantanamo Bay and watch courtroom hearings of the military commission. Visiting the camp as a civilian promotes public transparency and accountability, he said, plus it’s just interesting to see how the military commission functions.
Guantanamo Bay is a Navy base on the island of Cuba. After the Sept. 11 attacks, former migrant facilities were turned into a detention center for suspected terrorists. While hundreds of men have been repatriated or sent to prisons in other nations, 47 or so detainees remain, among the Sept. 11 planners.
In a small way, Banks was witness to history. The military commissions were created to bring justice to suspected terrorists who are being held at the detention center. Banks said the process of prosecuting the men is similar in many ways to civilian court.
“Most people would recognize it as an American trial,” he said.
There were some notable differences, however.
One of the issues being debated in pre-trial hearings is whether evidence collected through torture or enhanced interrogations is admissible — not an issue commonly debated in Island County Superior Court. Banks explained that information about the torture was recently declassified. It shows that CIA agents waterboarded al-Nashiri, hung him by his arms, performed fake executions, forced him into a coffin and did other painful and demeaning acts. The CIA destroyed some of the evidence of torture.
“His lawyers say he’s like a beaten dog,” Banks said. “There’s just not that much left of him.”
At the request of the defense, the judge ordered that al-Nashiri receive an MRI to check for brain damage he may have suffered during six years of torture. The order was made years ago; the defense complained that the government still hadn’t provided the machine, Banks said.
Defense attorneys were concerned that the prosecution’s star witness, Ahmed al-Darbi, won’t be able to attend the trial, which means they will have to take his videotaped deposition before receiving complete discovery, Banks explained. Al-Darbi pleaded guilty to the tanker bombing and will be serving time in a Saudi Arabia prison.
Though his exposure to the case was limited, Banks said evidence handling by the FBI raised concerns for him. There were holes in chain-of-custody documentation. It sounded like FBI agents got into a “turf war” about who was in charge of the case; two different agents testified that they were running the investigation, he said.
On the other hand, Banks was impressed with attorneys on both sides, as well as the judge.
The trial itself may still be years away. A jury will consist of members of the military.
“They said even if he’s acquitted, he’ll never get out,” Banks said.
Transparency and razor wire
The military commission was authorized under the Military Commissions Act of 2009; an earlier version of the law was revised after the Supreme Court ruled that detainees do have habeas corpus rights. It still hasn’t been fully determined what rights the suspected terrorists have under the Constitution or Geneva Conventions.
In 2004, the Office of Military Commissions began inviting non-governmental organizations to view hearings. Currently, there are 24 approved organizations, including human-rights groups, law school “Guantanamo” projects, journalism schools, victims’ organizations, and defense attorneys’ and district attorneys’ organizations, according to Maj. Ben Sakrisson, a Department of Defense spokesman.
The purpose of allowing access, he wrote in an email, is to provide an opportunity for people outside of the government “to report directly from the hearings based upon their particular views/observations.”
Banks personally paid to fly to Andrews Air Force Base near Washington D.C. From there, a government contractor flew him and other visitors to Gitmo.
Banks and other observers stayed in a tent city at Camp Justice, which is really a collection of quonset huts built on an old runway. Most of the huts were empty, with generators running in all of them to keep the air conditioning going. The huts were cooled to a chilly 60 degrees, he was told, to keep out the iguanas and “banana rats.” The noise of the generators was constant.
Outside, the base is arid, though the ocean is beautiful. Banks was told that it’s a popular assignment for members of the military. There’s even a Gitmo gift shop.
Not surprisingly, security is serious. Banks said the observers weren’t allowed anywhere near the facility where the detainees are kept. They couldn’t even see it in the distance.
Security is especially geared up, he said, when court was in session.
Yet there were some head-scratchers, he said. Some of the rules governing things like photography didn’t make a lot of sense. Security, for example, didn’t seem to take into account the fact that cell phones can take photos both forward and backward.
Camp Justice was secured with razor wire and armed guards in portable guard towers. Banks found it odd, however, when he asked if he could go for a jog on the beach and was told he could just push aside some razor wire and go through a gap in the fence.
”It was a nice run,” he said.
