Launching an attack on the unique military tribunals that will also try the five men accused of the September 11 attacks, lawyers said the Guantanamo court system was founded not on constitutional or legal principles but on “political self-interest”.
The lawyers for Abd al Rahim al Nashiri, a 47-year-old Saudi man accused of orchestrating the USS Cole bombing in 2000 that killed 17 US sailors, said their client deserved the same legal rights as US citizens.
Quoting from the opening US declaration of Independence, that “all men are created equal”, Michel Paradis, argued that Mr Nashiri could be “deprived of his life in a way that a citizen of the US could not be” if he is convicted and sentenced to death, as the prosecution wants.
The pre-trial hearings for Mr Nashiri, who is due to stand trial in November, are being intensely scrutinized by media organisations, legal scholars and human rights groups anxious to see how transparent and open the hearings will actually be.
The court’s chief prosecutor, Brigadier General Mark Martins, rebutted the defence claims, arguing that there was a “rational and legitimate” reason for the US Congress to create the special tribunals.
The Guantanamo courts were first introduced by George W Bush, but were overhauled in 2009 after the Obama administration took office, to make evidence extracted under torture inadmissible and reduce the use of hearsay.
Brig-Gen Martins argued that defendants, because they fought “from the shadows” in breach of Article 4 of the Geneva Convention, were being afforded a “full panoply of statutory rights” even though they had failed to comply with the “basic laws of armed conflict.” His defence came after making several high-profile speeches arguing for the legitimacy of the reformed Guantanamo hearings their army officer juries, including at Harvard Law School last month.
However the proceedings have been dogged by concerns that the US Government is unfairly censoring the hearings, using national security considerations to hide its own embarrassment over allegations of maltreatment and torture.
According to a 2004 CIA report, Al Nashiri was repeatedly subject to ‘waterboarding’ while in detention; had an automatic weapon cocked against his head while blindfolded in a mock execution and was threatened with a revving power drill.
Al Nashiri was captured in Dubai in 2002 and held for several years in secret CIA prisons in Thailand and Poland before later being transferred to the Guantanamo Bay prison camp.
Defence lawyers had asked for permission for Al Nashiri to testify about his torture at the pre-trial hearing, but the judge side-stepped the issue by granting a defence request to see their client unfettered by shackles.
Al Nashiri will be allowed to testify at his November trial, however it remains unclear how much of his words will be made public.
David Schulz, a lawyer acting for several leading US media organisations, warned that the US government must respect the Constitutional rights of the public to freedom of speech and information and keep the hearings as open as possible.
He argued that even classified information — under Guantanamo rules everything uttered by a detainee is considered “classified” — should be made public unless the government could show its disclosure was likely to be an actual threat to national security, or put an individual at risk.
If acquitted, Al Nashiri will almost certainly not be set free because of his status as a prisoner of war in an on-going conflict, a situation that defence lawyers say is a fundamental breach of the basic right to acquittal.
International rights groups remain largely scathing of the Guantamo process, arguing that the Obama reforms have not gone far enough to enable the Guantanamo defendants to have a fair trial, including allowing the military authorities to pick the juries.
“These are fundamentally flawed proceedings. There is a gross inequality of arms between the prosecution and the defence in terms of resources and access to evidence,” said Reed Brody, a legal counsel with Human Rights Watch observing in Guantanamo.
Source: The Telegraph