When Marines escorted Abd al Rahim al Nashiri into a packed courtroom at Guantanamo Bay, Cuba, for the first time Wednesday, the alleged mastermind of the bombing of the U.S. destroyer Cole and other terrorist attacks wore his usual prison garments: baggy white pants, V-neck shirt and black high-top sneakers.
The military judge warned Nashiri that his attire could prejudice a jury when his trial starts late next year. A defendant has a right to wear a suit in court, the judge advised.
“I intended to show up in my prison uniform,” the 46-year-old Saudi responded with a small smile.
Nashiri’s choice of clothing after nine years in U.S. custody appeared to be a quiet acknowledgment that no matter what the jury decides, he will not be set free. The U.S. government considers Nashiri an “enemy combatant” and says it has legal writ to imprison him until the end of hostilities with Al Qaeda.
Nashiri’s case is more than a legal oddity.
The first military commission of the Obama administration will put on trial the first detainee who was waterboarded at a covert CIA prison. It thus will test the limits of what evidence is admissible in a death penalty case that involves secret detentions and interrogation techniques widely regarded as torture.
It also is a test case of new regulations imposed by the administration in an effort to make military tribunals of suspected terrorists more transparent and fair.
During the four-hour arraignment Wednesday, Army Col. James L. Pohl, the presiding judge, issued an order barring guards at the prison at the U.S. naval base in Guantanamo from reading mail between Nashiri and his defense team, which they previously had done.
The judge also appeared amenable to informing a future jury that an acquittal would not let Nashiri walk free. The defendant was not required to enter a plea of guilty or not guilty.
Nashiri gave a friendly wave toward the spectator gallery when he entered the courtroom. A stocky man, he wore a small mustache and close-cropped black hair. The judge informed him of his rights and Nashiri listened to an Arabic translation through headphones and gave cordial responses.
“I do not speak English,” Nashiri said through an interpreter.
“Do you have a translator here in the courtroom?” asked the judge.
“Yes,” said Nashiri.
Nashiri placed his hand on his interpreter’s knee and smiled.
When the judge asked whether he was satisfied with his attorney, Nashiri said yes, calling his lawyer, Richard Kammen, “Mr. Rick.”
“I do not pronounce names perfectly,” Nashiri said.
“Neither do I,” said the judge, who had mispronounced Nashiri’s name earlier in the hearing.
The judge told Nashiri he didn’t need to attend all the hearings before his trial date, now scheduled for Nov. 9, 2012.
“I think I will attend all the sessions,” Nashiri said.
Nashiri’s lawyers met with reporters after the hearing. Asked whether Nashiri had expressed remorse for the Cole bombing, which killed 17 U.S. sailors and wounded more than 40, Kammen said the government had ruled that everything Nashiri tells his lawyers is top-secret. The judge made an exception for his appearance in court.
“His responses are appropriate to the situation,” Kammen said. “This is not a person, in our view, without heart or feeling.”
Asked why Nashiri appeared to smile during the hearing, Kammen said he thought his client was “glad to be in the process.”
“He probably has not been in a room bigger than 8 by 12 in the last several years,” Kammen said.
The proceedings were broadcast on closed-circuit TV at two military bases, in Maryland and Virginia. But some family members of the victims traveled to Guantanamo Bay to render their own judgments.
“I think he should get the death penalty or worse,” said John Clodfelter, the father of Kenneth E. Clodfelter, who was killed when suicide bombers in a small boat nearly sank the Cole in the Yemeni port of Aden on Oct. 12, 2000.
Clodfelter said he came from Mechanicsville, Va., to see the terrorist he believes planned the attack that killed his son.
“He was just a pitiful-looking person,” Clodfelter said. “I’d like to see him face to face. Let him know, ‘Hey, you haven’t gotten away with it.’ ”