The first captive at the U.S. naval base on Guantanamo Bay, Cuba, to be charged in a military tribunal during the Obama presidency is expected to be one of the prison’s most notorious inmates — Abd al Rahim al Nashiri, the alleged mastermind of the 2000 bombing of the U.S. destroyer Cole that killed 17 sailors.
And his case, beset with Nashiri’s allegations of torture and mistreatment, is fraught with complications for the administration, which this week reversed course and announced it would maintain the George W. Bush legacy of holding military tribunals inside the Caribbean fortress.
There are 172 prisoners there now, down from 245 when President Obama took office in January 2009. Forty percent of them are Yemenis, mostly low-level fighters with loose connections to Al Qaeda or the Taliban, and yet they may present a risk if returned home, which has become rife with Islamic militant groups.
Four dozen other men are considered too dangerous to send home but difficult to prosecute because their cases are too flimsy for prosecution in the military system.
So it is Nashiri who poses the first test for the Obama administration in the minefield of military tribunals, in which the Bush administration was dogged with accusations of unconstitutional maneuvering and misguided justice.
But legal experts said Tuesday that legal changes made the process fairer and granted more of a semblance of due process for detainees.
Congress in 2009 revised the rules for military commissions, as the tribunals are known, and military prosecutors now cannot introduce “statements obtained by torture, or cruel, inhuman or degrading statements.” Moreover, a defendant’s past statements may be used only if the judge concludes they were “voluntarily given.”
Also tightened are standards for “hearsay” testimony from absent witnesses. A military judge now will permit such testimony only if the prosecutor shows it is reliable and relevant.
“The changes made in 2009 were significant and make the commissions much fairer. But they are not as fair” as a civilian trial in federal court, said Mason Clutter, counsel for the Constitution Project, a bipartisan group that wants the Guantanamo prison closed.
Charles D. “Cully” Stimson, a Pentagon lawyer under Bush, said military commissions could fairly decide whether a captive was guilty or not, but the verdict might not always be accepted as fair. For one thing, the judge and jurors are U.S. military officers.
“It is the unanswered question: whether they will be perceived as fair,” Stimson said. “Certain folks on the left will never take kindly to the commissions, and they will honestly believe they mete out substandard justice.”
According to the allegations against Nashiri, he met Osama bin Laden in 1996 and joined Al Qaeda two years later. In the fall of 2000, he allegedly recruited others to pilot a small boat filled with bombs into the Cole, setting off an explosion in a Yemeni port, killing 17 U.S. sailors and leaving a 40-foot hole in the ship.
Nashiri, a Saudi, was captured more than a year later, and “admitted he assisted with the plot,” according to the government allegations. He was taken to Guantanamo Bay, one of 779 captives who have been detained there at one time or another.
Then Nashiri’s lawyers contended that he had been deprived of sleep and tormented with sensory deprivation. An unidentified associate professor of medicine at Boston University, who specializes in human rights and refugee health, testified about “torturous treatment” and “cruel, inhuman and degrading treatment.”
Pentagon officials said Tuesday that Nashiri probably would be charged this month and arraigned in April. A military trial could convene by summer.
Others expected to be charged soon include Ahmed Darbi, a Saudi accused of plotting a separate ship attack, and Obaidullah, an Afghan who uses only one name and is accused of possessing anti-tank mines.
Since Obama has been president, one prisoner has died at Guantanamo. Awal Gul, a 48-year-old Taliban recruiter and suspected Al Qaeda operative, collapsed and died last month in the shower after exercising on an elliptical machine in his Camp 6 cellblock.
His time at Guantanamo Bay — like the vast majority, without a trial — lasted eight years and four months.