DOD Announces Military Commissions Actions [al-Nashiri]

Today, prosecutors in the Office of Military Commissions announced they intend to ask the convening authority to refer new charges under the recently-enacted Military Commissions Act of 2009 against Abd al-Rahim Hussein Muhammed Abdu al-Nashiri, in connection with the bombing of the USS Cole in the port of Aden, Yemen, in October 2000. The bombing resulted in the deaths of 17 sailors and injuries to many more.

This announcement follows the attorney general's determination on Nov. 13, 2009, that a military commission was the proper forum for prosecution of al-Nashiri.

The prosecutors are reviewing this and other cases identified by the attorney general as appropriate for trial in a military commission and anticipate making further announcements soon.

As part of the process of moving forward with the prosecution of al-Nashiri, on Nov. 19, 2009, in response to a request from the prosecutors, the convening authority dismissed without prejudice the pending charges against al-Nashiri. This dismissal without prejudice is a procedural action permitting new charges to be referred at a later time.

A charge is merely an accusation; an accused is presumed innocent until proven guilty.

Previously...

Quote:

www.defenselink.mil/releases/release.aspx?releaseid=12031

IMMEDIATE RELEASE No. 553-08
June 30, 2008
Charges Sworn Against Detainee Al-Nashiri

The Defense Department announced today that charges have been sworn against ‘Abd al-Rahim al-Nashiri of Saudi Arabia. This swearing brings to twenty the number of detainees who are in some stage of the military commission process.

The charges allege that Mr. al-Nashiri participated in the planning and preparation for the attack on the USS Cole in the Port of Aden, Yemen, on Oct. 12, 2000. It is alleged that two men dressed as civilians piloted what appeared to be a small, civilian garbage barge up to the ship. The two men allegedly made friendly gestures to several crewmembers aboard the ship before detonating explosives concealed within their boat. The attack killed 17 sailors, wounded 47 sailors, and severely damaged the ship. It is alleged that al-Nashiri was involved in the following actions, among other things:

Renting apartments and houses near Aden, Yemen, for use in observing the Port of Aden and preparing for an attack against a U.S. Naval vessel;

Purchasing a small, civilian boat in 1999 and arranging for a vehicle to tow the boat;

Obtaining explosives, transporting them to a safe house, and concealing the explosives in the boat;

Attempting unsuccessfully to use the explosives-laden boat to attack the USS The Sullivans as it was refueling in the port of Aden on Jan. 3, 2000;

Recovering and refitting the boat and explosives for use in the later attack on the USS Cole;

Meeting with Usama bin Laden and other co-conspirators in Afghanistan to reorganize their plot in the summer of 2000, prior to the attack on the USS Cole;

Testing the explosives recovered after the failed attack on the USS The Sullivans;

Arranging for two co-conspirators to launch the explosives-laden boat in the Port of Aden and detonating their explosives alongside the USS Cole, killing 17 sailors, wounding 47 other sailors and blasting a 40 foot hole in the side of the ship;

Assisting in the attack on the SS Limburg, a French super-tanker, in the Gulf of Aden on Oct. 6, 2002, resulting in the death of a crewmember and the spillage of approximately 90,000 barrels of oil into the Gulf.

Based on these allegations and others outlined in the charge sheet, al-Nashiri is charged with the following substantive offenses: conspiracy to violate the law of war, murder in violation of the law of war, treachery or perfidy, terrorism, destruction of property in violation of the law of war, intentionally causing serious bodily injury, providing material support to terrorism, and attempted murder.

In accordance with the Military Commissions Act of 2006, these sworn charges will be forwarded to the Convening Authority, Susan J. Crawford. She will then make an independent determination as to whether to refer some, all, or none of the charges to trial by military commission. If the convening authority decides to refer the case to trial, she will designate commission panel members (jurors). The chief trial judge of the Military Commissions Trial Judiciary will detail a military judge to the case.

The chief prosecutor has recommended the charges against al-Nashiri be referred as capital. If the convening authority, in her sole discretion, decides to refer the case as capital, the accused may face the possibility of being sentenced to death.

The military commissions provide the following protections for the accused: to be represented by detailed military counsel, as well as civilian counsel of his own selection and at no expense to the government; to elect not to testify at trial and to have no adverse inference drawn from it; to examine all evidence presented to a jury by the prosecution; to obtain evidence and to call witnesses on his own behalf including expert witnesses; to cross-examine every witness called by the prosecution; to be present during the presentation of evidence; to have no statements obtained by torture admitted; to have a military commission panel (jury) of at least five military members determine guilt or innocence by a 2/3 majority, or in the case of a capital offense, a unanimous decision of at least 12 members; and the right to an appeal to the Court of Military Commission Review, then through the U.S. Court of Appeals for the District of Columbia Circuit to the United States Supreme Court.

The charges are only allegations that the accused has committed offenses under the Military Commissions Act, and the accused remains innocent unless proven guilty beyond a reasonable doubt.

Conducting fair, just, and open military commissions is the Department of Defense’s top legal services priority. In conjunction with that, it is important that the commissions be accessible to victim family members.

The Department of Defense is developing plans to provide access to commission proceedings for victim family members at Naval Station Guantanamo Bay, Cuba. The Department is also working towards providing a closed circuit television feed at a selected U.S. site to allow victim families to view trial proceedings.

Currently...

Quote:

www.defense.gov/releases/release.aspx?releaseid=14424

IMMEDIATE RELEASE No. 322-11
April 20, 2011
DOD Announces Charges Sworn Against Detainee Nashiri

The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia.

The chief prosecutor has recommended that the charges against Nashiri be referred as capital. Capital charges may only be pursued with the convening authority’s approval.

The charges allege that Nashiri was in charge of the planning and preparation for the attack on USS Cole (DDG 67) in the Port of Aden, Yemen, on Oct. 12, 2000. The attack killed 17 sailors, wounded 40 sailors, and severely damaged the ship by blowing a 30-foot by 30-foot hole in her side. The charges also allege that Nashiri was in charge of planning and preparation for an attempted attack on USS The Sullivans (DDG 68) as that ship refueled in the Port of Aden on Jan. 3, 2000.

It is further alleged that Nashiri was in charge of the planning and preparation for an attack on the French civilian oil tanker MV Limburg in the Gulf of Aden on Oct. 6, 2002. This attack resulted in the death of one crewmember and the release of approximately 90,000 barrels of oil into the gulf.

The charges allege that Nashiri committed offenses that are chargeable under the Military Commissions Act of 2009, 10 U.S.C. §§ 948a, et seq. Under that act, he may be convicted only if his guilt is proven beyond a reasonable doubt. Specifically, Nashiri is charged with the following substantive offenses: terrorism; attacking civilians; attacking civilian objects; intentionally causing serious bodily injury; hazarding a vessel; using treachery or perfidy; murder in violation of the law of war; attempted murder in violation of the law of war; conspiracy to commit terrorism and murder in violation of the law of war; destruction of property in violation of the law of war; and attempted destruction of property in violation of the law of war.

These charges go beyond what is necessary to establish that Nashiri may be lawfully detained under the 2001 Authorization for Use of Military Force, as informed by the laws of war — an issue that each Guantanamo detainee may challenge in a habeas petition in federal court.

In accordance with the Military Commissions Act of 2009, the sworn charges will be forwarded to the Convening Authority, Bruce MacDonald. The convening authority will make an independent determination as to whether to refer some, all, or none of the charges for trial by military commission. If the convening authority decides to refer the case to trial, he will designate commission panel members (jurors). The chief trial judge of the Military Commissions Trial Judiciary would then assign a military judge to the case.

Note: The links were made non-clickable by me for this post.

NOTE The following text is a quote:

www.defense.gov/releases/release.aspx?releaseid=14821

IMMEDIATE RELEASE
No. 827-11
September 28, 2011

DOD Announces Charges Referred Against Detainee Al Nashiri

The Department of Defense announced today that the Convening Authority, Office of Military Commissions referred charges to a military commission in the case of United States v. Abd Al Rahim Hussayn Muhammad Al Nashiri. The referred charges allege, among other things, that Al Nashiri was in charge of the planning and preparation for the attack on USS Cole (DDG 67) in the Port of Aden, Yemen, on Oct. 12, 2000. That attack killed 17 sailors, wounded 37 sailors, and severely damaged the ship.

The Convening Authority referred the charges to a capital military commission, meaning that, if convicted, Al Nashiri could be sentenced to death. Pursuant to the reforms in the Military Commissions Act of 2009, Al Nashiri has been provided with additional counsel, learned in the applicable law relating to capital cases, to assist in his defense.

The charges also allege that Al Nashiri was in charge of planning and preparation for an attempted attack on USS The Sullivans (DDG 68) as that ship refueled in the Port of Aden on Jan. 3, 2000. The charges further allege that Al Nashiri was in charge of the planning and preparation for attack on the French civilian oil tanker MV Limburg in the Gulf of Aden on Oct. 6, 2002.
This attack resulted in the death of one crewmember and the release of approximately 90,000 barrels of oil into the gulf.

In accordance with Military Commissions rules and procedures, the Chief Trial Judge of the Military Commissions Trial Judiciary will assign a military judge to the case, and Al Nashiri will be arraigned at Guantanamo within 30 days of service of the referred charges upon him.

More information, including the relevant charge sheets, is available at the Office of Military Commissions website at www.mc.mil.

NOTE The following text is a quote:

www.defense.gov//News/NewsArticle.aspx?ID=66820

Pretrial Proceedings Begin for Alleged USS Cole Mastermind

By Donna Miles
American Forces Press Service

FORT MEADE, Md., Jan. 17, 2012 – The commander of the U.S. detention facility at Naval Station Guantanamo Bay, Cuba, defended the new policy that allows government officials to monitor prisoners’ mail during the opening day of pretrial proceedings for the alleged mastermind in the USS Cole bombing.

Navy Rear Adm. David Woods, commander of Joint Task Force Guantanamo Bay, testified today in response to a motion by the defense at the military commission hearing for Abd al-Rahim Hussein Muhammed al Nashiri. Army Col. James Pohl ruled during proceedings at Guantanamo Bay that Woods should explain the policy he instituted last month.

Woods, one of the highest-level officials to testify in a military tribunal, said the new policy balances his responsibilities to facilitate attorney-client communication while also ensuring security, safety, force protection and good order at the facility.

Woods told Navy Lt. Cmdr. Stephen C. Reyes of the defense team the new policy allows members of a team that reviews detainee privileges to conduct a “plain-view review” of written communications not marked as protected attorney-client information. The review, he said, is designed to ensure this correspondence does not include physical or “information contraband” such as maps of the detention facility.

Woods disputed the defense position that the policy violates client-attorney privilege, or that reviewers must read the material in full to make a determination. He also denied that the policy restricts access between detainees and their lawyers.

One of its benefits, he said, is authorizing guards to search the plastic bins reserved for legal paperwork and correspondence in detainee living spaces. Guards reportedly have found contraband stowed in these “legal bins” in the past.

Woods acknowledged that the policy depends on the professionalism of the privileged review team, as well as their contractual commitments, to ensure their review is conducted properly and ethically. He noted that reviewers, all civilian contractors, must sign a non-disclosure agreement that bars them from sharing this information, particularly with prosecuting attorneys associated with the case.

The prosecution called the defense’s request for Woods to appear before the court irrelevant to the case because Nashiri hasn’t been subject to mail searches.

However, officials said Pohl’s decision to call him likely was made because what happens in the Nashiri case – the first to go through a revised military commission system — is likely to set the precedent for trials to follow. Army Col. John Head, deputy chief of staff for the convening authority, told reporters the defense’s request likely is intended to institute an across-the-board process that ensures all detainees receive equal treatment.

Pohl is expected to render a decision tomorrow, the second of two days of a pretrial hearing to consider 10 motions in the case.

Nashiri, 47, is charged with “perfidy,” or treachery; murder in violation of the law of war; attempted murder in violation of the law of war; terrorism; conspiracy; intentionally causing serious bodily injury; attacking civilians; attacking civilian objects; and hazarding a vessel.

The charges arise out of an attempted attack on the USS The Sullivans in January 2000 and an attack on the USS Cole in October 2000, during which 17 U.S. sailors were killed and 37 more wounded. Nashiri also is accused of involvement in an attack on the MV Limburg, a French civilian oil tanker, in October 2002 in which one crewmember was killed and about 90,000 barrels of oil spilled into the Gulf of Aden. If convicted, Nashiri could be sentenced to death.

Nashiri did not enter a plea during his arraignment at Guantanamo Bay in November.

Although the defendant was in the room during today’s proceedings – albeit it out of camera view for remote viewers for most of the hearing – all the activity revolved around the prosecution and defense teams.

Pohl rejected two defense motions: one to allow Nashiri to be unrestrained during his meetings with his legal counsel, and one to establish an enclave – a protected network within the larger Defense Department computer network – in an effort to keep DOD from monitoring the defense counsel’s computers and electronic communications.

Pohl dismissed civilian defense counsel Richard Kammen’s argument that defense counsel should be able to meet with unrestrained detainees in locked-room meetings, as representatives of the International Committee of the Red Cross are able to.

The current policy requires detainees to be shackled and in an unlocked room during meetings with their attorneys, enabling guards to enter the room and for attorneys to exit quickly in the event of a disturbance, the prosecution noted.

Anthony W. Mattivi, a member of the prosecution team representing the Justice Department, expressed concern that changing the current policy could put the guards at increased risk and said Woods should be the one to make any changes to the policy, not the court. “That’s not his call,” Mattivi said of Kammen. “It’s the commander’s.”

Pohl agreed, ruling to keep the current policy intact.

The judge, however, left the door open for a possible request by the defense for an enclave or other security remedy for its electronic communications in the future, while acknowledging that even material in enclaves is subject to monitoring.

Kammen compared the encryption system the defense now uses to protect sensitive materials to putting them in a locked drawer in an office, then handing the government the key to the drawer and leaving the office door open. “It’s the appearance of confidentiality without the substance,” he told the court.

Lockhart argued that an enclave isn’t necessary because encryption already ensures the maximum security possible for the documents. Pentagon computer security expert Adam Bennett, whom she called to the stand, said it’s virtually impossible for government officials to access encrypted information or open documents – including those used by the defense team – without the password and encryption software needed to access it.

Both the defense and prosecution, as well as the judge, recognized that all material on DOD networks is subject to routine, noncontent-related screening to prevent viruses and cyber attacks.

In other motions considered today, Pohl granted a motion supporting more public access to court proceedings. Currently the proceedings are broadcast from the court at Guantanamo Bay via closed circuit to just three locations in the United States. Two of those sites are here at Fort Meade in a theater and training-room facility. Another, at Norfolk Naval Base, Va., is reserved for families of USS Cole victims as well as crewmembers aboard the vessel during the attack.

Pohl also moved that unofficial transcripts of the proceedings, posted online while the official transcript remains classified, may be referred to by both legal teams during the trial.

Speaking to reporters after the hearing, Kammen said the defense considered today “on balance, a very successful day,” while acknowledging that some of the motions made could ultimately delay the trial, possibly as far out as 2015.
Kammen called military commissions “at best, a second-class system of justice” and said they are designed to be secretive and provide expedient justice at the expense of transparency and fairness. He added that the defense team today fought for things it wouldn’t have had to in federal court, and accused the government of blurring the line between classified and embarrassing information.

Army Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, disputed Kammen’s charges, noting that the prosecution team in the commissions operates much like prosecutors in federal courts. They play no part in handling defendant’s correspondence or defense attorney’s emails, don’t communicate with facility personnel about contacts with an accused legal materials and aren’t privy to those materials, he said.

Martins said proceedings like today’s are designed to ensure legal issues are resolved in a way “consistent with the fair, transparent and accountable administration of justice under the rule of law.”

Despite the manpower and expense associated with the commission proceedings, Martins said the United States has a responsibility to follow them through. “Not only must we continue to pursue the truth for the surviving family members of victims who have been rendered silent, but we must also pursue it because that is what justice requires,” he said. “A civilized and open society facing very real and modern security threats can demand no less.”

Related Sites:
Military Commissions Website

NOTE The following text is a quote:

www.defense.gov//News/NewsArticle.aspx?ID=66840

Prosecutor: Extremist Magazine Prompted Order on Detainee Mail

By Donna Miles
American Forces Press Service

FORT MEADE, Md., Jan. 18, 2012 – A prosecutor in the trial of the alleged mastermind behind the USS Cole bombing divulged today the root of a new order that allows officials to monitor prisoners’ legal mail at Guantanamo Bay, Cuba: a copy of an extremist magazine found at the detention facility.

Navy Cmdr. Andrea Lockhart, a member of the prosecution team in the case of Abd al-Rahim al-Nashiri, told the court a copy of Inspire magazine “got in” to the facility, although she did not specify exactly where. The English-language magazine is published by the al-Qaida of the Arabian Peninsula organization, and it includes articles designed to inspire extremists and teach them how to carry out violent acts.

Discovery of the magazine – considered contraband – sparked Navy Rear Adm. David B. Woods, commander of Joint Task Force Guantanamo, to institute a new policy last month that allows government officials to monitor prisoner’s legal mail.

Lockhart told the court today the discovery of Inspire magazine demonstrated that previous rules that covered incoming mail at the detention center weren’t sufficient.

During testimony yesterday, Woods told Navy Lt. Cmdr. Stephen C. Reyes of the defense team the new policy allows members of a privilege review team to conduct a “plain-view review” of written communications not marked as protected attorney-client information. This review, Woods testified, is designed to ensure this correspondence does not include physical or information contraband, such as maps of the detention facility.

Woods told the court yesterday the new policy balances his responsibilities to facilitate attorney-client communication while also ensuring security, safety, force protection and good order at the facility. However, the new order has become a major sticking point in Nashiri’s pretrial hearing, even though both the defense and prosecution teams acknowledge his mail has never been searched under the new policy.

The issue has dominated discussion during both days of the pretrial hearing that began yesterday to address 10 motions filed by the defense and prosecution teams.

Nashiri’s defense team continued its argument today that the new policy compromises the attorney-client privilege because it allows a special review team to examine detainees’ legal correspondence. The prosecution proposed that the review team operate as an independent body, “walled off” from the prosecution, and that defense attorneys be able to observe any reviews of their client’s legal documents.

The defense conceded that prison officials need to be able to inspect for contraband, but insisted that this should not extend to reading legal mail.
After extensive discussion over the past two days by both teams, Army Col. James Pohl, the judge, deferred a decision on the issue today. He did, however, offer the defense assurance that a new order will come, probably within “a couple of weeks.”

Pohl gave the defense team seven days to come up with a complete order it believes meets its requirements. He also directed the prosecution to come up with a clear definition of what “plain view” means, and said the team will have seven days to comment on the defense’s proposed order.

Considering another motion, Pohl responded to a defense concern that classified information used by the defense – and summarized with the goal of creating an unclassified document that also omits sensitive material such as sources and collection methods – risks leaving out key information the defense team needs.

Richard Kammen, the lead civilian defense counsel, argued that Pohl’s determinations otherwise will be made in a vacuum without consideration for the defense.

Pohl ruled that the defense has until a hearing to be scheduled in April to tell him exactly what kind of material it needs to build its case. That way, he will be able to take that information into consideration when comparing the prosecution’s summary to the source material.

The judge will then share any changes he makes to the summary with the prosecution team before approving it. At that point, the document becomes final, not able to be reconsidered except in the event of an appeal, officials explained.

During a post-hearing news conference, Kammen accused the prosecution of trying to get Pohl to make a quick, irrevocable decision that will impact the defense’s case, but with no meaningful input from the defense. He commended Pohl for delaying action until April, although indicating that it’s still too little time for the defense team to adequately review the mountains of information involved and request needed resources.

“Three months in the context of the demands of this case is a blink of an eye,” he said.

Kammen again condemned the military commission process, saying it was designed “solely to provide the façade of justice, but not real justice.” He said it is “completely outside the pale of what American justice has stood for for 200 years.”

Army Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, underscored the importance of protecting classified information as well as sensitive information when it is in the public interest during this and other trials.

He emphasized that military commissions – like all criminal trials in the U.S. federal system of criminal justice – must subscribe to rules that balance the accused’s right to a fair trial and the need to protect national security and other public interests.

Although Nashiri was in the courtroom during today’s proceedings, all the activity revolved around the prosecution and defense teams.

The charges arise out of an attempted attack on the USS The Sullivans in January 2000 and an attack on the USS Cole in October 2000, during which 17 U.S. sailors were killed and 37 more wounded. Nashiri also is accused of involvement in an attack on the MV Limburg, a French civilian oil tanker, in October 2002, in which one crew member was killed and about 90,000 barrels of oil spilled into the Gulf of Aden. If convicted, Nashiri could be sentenced to death.

Nashiri did not enter a plea during his arraignment at Guantanamo Bay in November.

The Guantanamo Bay proceedings are being broadcast via closed circuit television to three sites in the United States. Two of those sites are at Fort Meade, in a theater and training-room facility. Another, at Norfolk Naval Base, Va., is reserved for families of USS Cole victims as well as crew members aboard the vessel during the attack.

Related Sites:
Military Commissions
Related Articles:
Pretrial Proceedings Begin for Alleged USS Cole Mastermind

NOTE The following text is a quote:

www.defense.gov//News/NewsArticle.aspx?ID=118308

Tribunal Judge Orders Cole Suspect to Appear in Court

By Terri Moon Cronk
American Forces Press Service

FORT MEADE, Md., Oct. 23, 2012 – The judge in the case of the alleged mastermind of the October 2000 bombing of Navy warship USS Cole ordered the defendant to appear in court tomorrow morning after he failed to appear today for a motions hearing at the U.S. naval station at Guantanamo Bay, Cuba.

Abd al Rahim Hussayn Muhammad al-Nashiri told legal officials his absence was in protest of belly chains used to escort him to the courtroom.

His nonappearance set off a spirited debate on several motions between the defense team and the U.S. government counsel; however, his no-show status took up much of the morning’s session.

The judge, Army Col. James L. Pohl, stopped court today at 11:30 a.m. until the defendant can appear in court tomorrow and hear his rights from the judge on the record. Pohl also ordered the government to allow the defense team to visit Nashiri today.

“There is no basis for his [absence] in court,” said prosecutor Army Brig. Gen. Mark Martins, who argued that without Nashiri in the courtroom, the integrity of the trial could be at risk.

Pohl denied other motions in today’s session, including the admission of defense mental health experts who would have provided testimony on the effect of torture to which Nashiri alleges he was subjected.

In addition to the Cole bombing, Nashiri, an alleged al-Qaida member, is accused in connection with an attempted attack on the USS The Sullivans in January 2000 and an attack on the French oil tanker Limburg in October 2002.

Seventeen sailors died when the Cole was attacked, and 40 others were injured. The Cole was in Aden, Yemen, for a fuel stop when a small watercraft approached the ship’s port side and exploded.

Nashiri is charged with perfidy, or treachery; murder in violation of the law of war; attempted murder in violation of the law of war; terrorism; conspiracy; intentionally causing serious bodily injury; attacking civilian objects and hazarding a vessel.

U.S. officials allege Nashiri was under the supervision of Osama bin Laden, and that bin Laden personally approved the attack. If convicted, Nashiri could receive the death penalty.

Related Sites:
Office of Military Commissions

Related Articles:
Motions to Resume for Suspect in USS Cole Attack

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