Al-Nashiri Hearing at Guantanamo: What Happens If He's Acquitted?

As Guantanamo detainee Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri is arraigned on capital charges of masterminding al Qaida's 2000 bombing of the U.S.S. Cole, lawyers are also arguing some important motions. Chief among them is: If al-Nashiri is acquitted, will he be released? Miami Herald Reporter Carol Rosenberg is live-tweeting the proceedings. Here's a handy twitter link to many of the reporters' live tweets in one place.

What are the possible outcomes of al-Nashiri's trial? If there are only 3, guilty and a death sentence, guilty and a sentence less than death, acquittal followed by indefinite detention, probably for life, why bother with a trial? A trial with no possibility of release is nothing but a show trial.

The defense argues that the military jury that will decide al-Nashiri's fate should be told that an acquittal means continued incarceration, if that's the case. Its motion is here. [More...]

The prosecutors disagree. Today a judge seemed at least willing to ask the Government what it means:

Judge Pohl just asked prosecutor to agree that, even if innocent, the US govt could "take him right back to the cell where he came from."

From the defense motion:
If Mr. Al-Nashiri is convicted, he may be sentenced to death, or sentenced to be held in punitive custody for as long as the rest of his life. But if the government intends to hold him in perpetuity regardless of the outcome, the sentence of death is the only result that changes anything. In all other respects, no matter the outcome, Mr. Al-Nashiri's life will remain as it is now. For Mr. Al-Nashiri, such a 'trial' offers no prospect of reprieve if he will remain incarcerated, for as long as the rest of his life, no matter what happens. And under the circumstances of this case, where it has been publically acknowledged that Mr. Al-Nashiri was tortured by the U.S. government, a trial without any real possibility of reprieve is yet another form of torture.

Al-Nashiri's charges are here. The case pleadings are available on this page, under the second al-Nashiri entry.

11:30 am ET: The Court is now hearing Nashiri's motion to stop the Government from reading his legal mail. (The defense reply to Government's response to its motion is here.)

The Washington Post today has Guantanamo detainees cleared for release but left in limbo. Part of the problem of indefinite detention stems from the 2011 National Defense Authorization Act:

... the defense secretary [must]certify that he would “ensure” that a freed “individual cannot engage or re-engage in any terrorist activity.”

The Post says it has "stranded most of the 32 detainees who were on track to be transferred when Congress acted."

Is there anything that can be done to thwart Congress:

Lawyers for the detainees insist that the administration still has options to continue its stated policy of reducing the population at Guantanamo Bay and, ultimately, closing the facility. The congressional restrictions do not bar the administration from transferring someone who has been ordered released by a federal court.

The Military Commission Court has a new website now with many documents available to the public. There's also a page for most of the legal cases with access to many pleadings. For future reference, I'm listing them here:

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  • Display: Sort:
    an acquittal means continued incarceration? (5.00 / 3) (#1)
    by Edger on Wed Nov 09, 2011 at 10:17:26 AM EST
    Good thing the US stands as a shining example of justice to the world now, isn't it?

    Maybe they could move Lady Liberty down there so she holds her torch above the prison?

    Lewis Carroll couldn't have imagined better....

    'But I don't want to go among mad people,' said Alice.

    'Oh, you can't help that,' said the cat. 'We're all mad here.'

    on Lewis Carroll (5.00 / 1) (#2)
    by Jeralyn on Wed Nov 09, 2011 at 10:30:25 AM EST
    The defense in another motion seeking to stop the Pentagon from reading al-Nashiri's legal mail, cites Parhat v. Gates (a Uigher detainee case) in which the Court said:

    Lewis Carroll notwithstanding, the fact that the government has "said it thrice" does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) ("I have said it thrice: What I tell you three times is true.").

    I assume "the court" in this instance (none / 0) (#3)
    by Edger on Wed Nov 09, 2011 at 10:39:07 AM EST
    as a particular judge or judges?

    What happens if al-Nashiri is acquitted and the court orders him released?


    There will be no acquital. He will not be released (5.00 / 1) (#15)
    by Mitch Guthman on Wed Nov 09, 2011 at 07:51:50 PM EST
    I don't think the administration would have permitted a trial unless they were fairly certain of the outcome in advance.  This will be a court composed of military officers whose future promotions and assignments will depend entirely on the favor of the senior military brass and of the administration.  Think of it as trying a claim against State Farm with a panel of State Farm insurance adjusters as judge and jury.

    What is surprising to me is that the guy still has lawyers fighting for him.  I guess that the new style of show trials.  In the old days his would have read his confession in open court before being sent to the gulag.  I suppose this is an improvement, of a sort.


    Under the rules (none / 0) (#17)
    by Jeralyn on Wed Nov 09, 2011 at 09:03:08 PM EST
    in order to try him, they have to provide him with at least one lawyer experienced in death penalty cases. His civilian lawyer is Rick Kammen, really one of the best death penalty lawyers anywhere.

    And maybe they could (5.00 / 1) (#16)
    by Zorba on Wed Nov 09, 2011 at 08:19:55 PM EST
    light a bonfire out of copies of the Constitution of the United States of America while they're at it, Edger.

    One of the things that always (5.00 / 1) (#5)
    by Militarytracy on Wed Nov 09, 2011 at 10:50:42 AM EST
    bothers many people that I know is accusing anyone who was involved in the bombing of the U.S.S. Cole of planning or preforming an act of terrorism.  The U.S.S. Cole is a military target.  Any attack on any military target cannot be called an act of terrorism I am told unless you are claiming that you are the emperors of the world.

    An attack of any kind upon a military target that does not involve directly harming civilians like flying a plane full of civilians into the Pentagon cannot be a terrorist act.  If the 9/11 terrorists had flown a plane empty of civilians into the Pentagon on 9/11, that single act would not have technically been an act of terrorism.

    It seems our definition is based more on who (5.00 / 3) (#7)
    by ruffian on Wed Nov 09, 2011 at 12:16:41 PM EST
    attacked than it is on what was attacked. A group of people not acting on behalf of a state to declare a war are deemed terrorists, hence the act is an act of terrorism.

    And then when it suits our purposes to call it an act of war instead, we call it that.

    Very fluid indeed.


    Just finished reading "In the Garden of (none / 0) (#8)
    by oculus on Wed Nov 09, 2011 at 12:25:02 PM EST
    Beasts," by Erik Larson.  In his public speech in 1933 after the murder of many in the German government at Hitler's behest, he referred to those murdered as "terrorists."  

    Are you claiming we are not emperors of the world (none / 0) (#9)
    by BobTinKY on Wed Nov 09, 2011 at 02:13:38 PM EST
    or at least a lot of it?

    The American Empire covers the globe and is the chief reason, IMHO, we have terrorism directed at US citizens.


    Further MT, our leaders call the Cole attack (none / 0) (#10)
    by BobTinKY on Wed Nov 09, 2011 at 02:18:07 PM EST
    terrorism not despite it being a claim of empire but because of it.

    I mean let's get real here.  National security interests in the Indian Ocean, destabilizing forces anywhere in the world (destabilizing what exactly?), all these euphemisms are describing threats not to the US or its citizens but to an empire.


    Most U.S. soldiers that I know (none / 0) (#18)
    by Militarytracy on Wed Nov 09, 2011 at 10:17:30 PM EST
    People who do study war all day everyday, say that if anyone attacks them on any kind of military installation or ship....that act can never be an act of terrorism.  They are our clearly designated pitbull, they protect, and they menace, their job is to acquire the existing anger and strife instead of civilians, they stand on the wall, they are the wall.  Acts of terrorism can only be preformed on civilians.  It isn't technically possible to preform an act of terrorism on them, they study how to terrorize others all day everyday.  They are part of the energy and the forces that terrorize the globe for a living.  I'm just telling you what those who study war for a living tell me.

    Wondering how Pres. Obama will (none / 0) (#19)
    by oculus on Wed Nov 09, 2011 at 10:20:08 PM EST
    be protected from terrorism on the U.S.S. Carl Vinson, when his presence has been announced before hand.  

    I haven't a clue (none / 0) (#20)
    by Militarytracy on Thu Nov 10, 2011 at 07:38:46 AM EST
    It wasn't that long ago that a Chinese sub went undetected and popped up in the middle of our Navy having an exercise.  I guess maybe they figured that one out :)

    But (none / 0) (#21)
    by jbindc on Thu Nov 10, 2011 at 09:12:25 AM EST
    It is an act of war.

    Sure (none / 0) (#22)
    by Militarytracy on Thu Nov 10, 2011 at 09:55:03 AM EST
    But such details count in courts.

    Right (none / 0) (#24)
    by jbindc on Thu Nov 10, 2011 at 10:30:59 AM EST
    But if you bomb one of our navy ships and attempt to sink it, and kill servicemembers, I don't think you should be surprised when you are not afforded Club Med-like accommodations or treatment.

    And it actually does matter (none / 0) (#25)
    by jbindc on Thu Nov 10, 2011 at 10:32:26 AM EST
    As to which court can hear the case and how the status of the defendant is treated.

    So, is what everyone desires (none / 0) (#26)
    by Militarytracy on Thu Nov 10, 2011 at 11:01:02 AM EST
    is for people who commit acts of war be granted club med digs if they are captured?  And yes, acts of war involved different courts but also different determinations of what is a criminal act.  Acts of war aren't always criminal acts and the Geneva Conventions on how POWs are treated come into play.

    Another question (none / 0) (#11)
    by BobTinKY on Wed Nov 09, 2011 at 02:33:01 PM EST
    if the inclusion of civilians on the plane crashed into the Pentagon is what makes that a terrorist act, how should predator drone attacks in which there are civilian casualties be classified?

    And there are always civilian casualties.


    Collateral Damage (none / 0) (#12)
    by ScottW714 on Wed Nov 09, 2011 at 03:30:32 PM EST
    I suspect the terms are interchangeable depending on who's making the claim.  Who considers their actions, as acts of terror ?


    Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition.

    The line between terror and war/skirmish is non-existent from any meaningful definition.


    indefinite detention, then (none / 0) (#13)
    by diogenes on Wed Nov 09, 2011 at 04:41:11 PM EST
    If, as you say, the attack was an "act of war", then unlawful enemy combatants get no trials and get indefinite detentions.  I guess they aren't subject to the death penalty, though.    

    What you is wrong as a matter of int'l law. (5.00 / 1) (#14)
    by Mitch Guthman on Wed Nov 09, 2011 at 07:25:47 PM EST
    It is probably true that anyone accused under the MCA can be held forever and perhaps executed without even the pretense of a show trial. But this is not a legitimate policy under international law and only shows have far from international norms and our own once proud traditions we have strayed.

    It was Gen. George Washington who began the American tradition of banning the cruel and inhumane treatment of prisoners. His orders for the treatment of captured British soldiers were:

    Treat them with humanity, and let them have no reason to Complain of our Copying the brutal example of the British Army in their treatment of our unfortunate brethren.... Provide everything necessary for them on the road.

    I believe the tradition begun by our founders was a source of great pride for our countrymen over the many years and two world wars fought while we still believed that it was our duty to honor our founding fathers' commitment to humane treatment  even of our most bitter enemies.  

    American-influenced principles of international law adopted this principle of humane treatment of captured enemies a international law. It was the rule in this country until the Bush and Obama administrations  (and remains so outside this country) that no person in enemy hands can ever be outside the law and must always be treated humanely.  

    Also, it is generally recognized (again, outside of the United States) that anyone held by their enemy who is not a POW (and thereby covered by the Third Geneva Convention) is a civilian covered by the Fourth Convention and must be treated humanely, be given a fair trial in a civilian court and cannot be detained indefinitely.  

    And, let me say in advance, that a show trial under the MCA is no more a fair trial than the Stalinist extravaganzas on which the American system is modeled. The current administration and its immediate predecessor have disgraced themselves and dishonored the traditions which gained our country much respect throughout the world.  


    What happens if he is acquitted? (none / 0) (#4)
    by BobTinKY on Wed Nov 09, 2011 at 10:43:05 AM EST
    as an intended serious question posed to a sitting Judge.

    Could that even have been imagined 12 years ago?

    Certainly. Read Kafka. (none / 0) (#6)
    by Mr Natural on Wed Nov 09, 2011 at 11:12:42 AM EST
    Now you know (none / 0) (#23)
    by Abdul Abulbul Amir on Thu Nov 10, 2011 at 10:25:46 AM EST

    why the Obama administration prefers a Hellfire missile fired from a drone rather than capture for such folk.  Whether the that is a step forward or a step back is another question.


    another easily answered question (none / 0) (#27)
    by BobTinKY on Fri Nov 11, 2011 at 09:13:03 AM EST
    it is a giant step back given the uncertain identity of the Hellfire victims & the completely foreseeable "collateral damage."