Al-Nashiri Military Commission Case Presents Moral and Legal Dilemmas

11/10/2011 02:16 pm ET | Updated Jan 23, 2014
  • Daphne Eviatar Senior Counsel, Law and Security Program, Human Rights First

The Obama administration will mark next year's 10-year anniversary of the prison camp at Guantanamo Bay with the trial of a man tortured by the CIA, locked up for a decade without trial, and accused of "war crimes" committed long before the United States was even at war.

That's what we learned from the military commission hearing of Abd al Rahim al-Nashiri that took place at the Guantanamo prison camp yesterday.

"Two years ago, we weren't going to be here because this institution was going to close down," the military judge, Colonel James L. Pohl, said yesterday as he presided over the arraignment of a man accused of planning a bombing 12 years ago. Pohl was referring to the fact that President Obama had promised on Day Two of his presidency to shutter the notorious prison within a year. But due to lack of presidential commitment and then a mountain of obstacles created by Congress, "Now we're here," Judge Pohl lamented.

The judge also acknowledged that by declaring al-Nashiri an "unprivileged enemy belligerent," even though the U.S. didn't declare war until a year after the U.S.S. Cole bombing he allegedly participated in, the government gets to keep al-Nashiri in prison even if it loses his military commission case. Under the laws of war, as the U.S. interprets them in this situation, such belligerents can be detained until the end of hostilities. Declaring al-Nashiri an "unprivileged enemy belligerent" rather than an accused criminal to be tried in a regular federal court thus creates a convenient "heads-I win, tails-you lose" situation for the government.

Perhaps one of the most troubling aspects of this prosecution is that al-Nashiri is among those "war on terror" detainees who were held at secret CIA black sites for years and tortured before the government even acknowledged he was in custody. Al-Nashiri was waterboarded and subjected to mock executions with CIA agents holding a power drill and gun to his head. While the Obama administration, also on Day Two in office, promised to shut down the CIA black sites and end its torture program, it seems to have no problem bringing war crimes charges against someone that our government tortured. If he loses, Al-Nashiri could face the death penalty.

Al-Nashiri's lawyers have objected. "By torturing Mr. al-Nashiri and subjecting him to cruel, inhuman and degrading treatment, the United States has forfeited its right to try him and certainly to kill him," his defense lawyers wrote in legal papers. "Through the infliction of physical and psychological abuse the government has essentially already killed a man it seized almost 10 years ago."

In fact, the 46-year-old Saudi man could have been tried fairly and expeditiously a decade ago in a U.S. federal court, and avoided this moral and legal conundrum, as well as the national embarrassment. Found guilty, he'd be serving a life sentence in a supermax facility today. Instead, the government is now faced with trying a man in a still-evolving military court system to whom it did all the things we lecture other countries against.

But there's another reason that trying al-Nashiri in a military commission seems morally bankrupt. At a time when Congress is cutting assistance to senior citizens, veterans and the poor, al-Nashiri, along with 170 other captives (126 of whom have been cleared for release or transfer but remain in prison), is being held at what must be the most expensive prison on earth.

Carol Rosenberg, the Miami Herald reporter who probably knows more about Guantanamo Bay than anyone, writes that the prison camp in Cuba is "costing taxpayers $800,000 annually for each of the 171 captives by Obama administration reckoning." That's more than 30 times the cost of keeping a prisoner on U.S. soil. Rosenberg continues: "Congress, charged now with cutting $1.5 trillion from the budget by Christmas, provided $139 million to operate the center last year, and has made every effort to keep it open--even as a former deputy commander of the detention center calls it "expensive" and "inefficient.""

What's more, despite the pledge two years ago to close it, Rosenberg reports that commanders are now contracting for new capital improvements, including $2 million worth of new computer equipment being paid via a noncompetitive contract with Dell, and plans to build the guard force commander a new 3,000-3,500 square foot headquarters.

As one of the regular non-governmental organization observers the government flies in to stay at the prison camps' military tents, I wish it were us getting the new headquarters, but no such luck.

Al-Nashiri's actual trial won't even begin until a year from now, the judge ruled yesterday. And with a new 202-page military commission rulebook issued just this week that could lead to many more legal motions and challenges, who knows if he'll actually stick to that trial date.

Much about the Guantanamo military commissions is unpredictable. But as the prison's 10-year anniversary approaches, I think we can fairly expect its enormous costs to just keep rising.