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...]
From the defense motion:
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."
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.
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:
- Military Commission Cases
- Military Commissions Act of 2009
- 2010 Military Commission Manual
- The Regulation for Trial by Military Commission (2011) is promulgated by the U.S. Secretary of Defense. It identifies policies and procedures for operating military commissions, including the operations of the United States Court of Military Commission Review
- The Military Commissions Trial Judiciary Rules of Court contains instructions for lawyers and accused practicing before military commissions.
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