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How the Guantanamo Bay Trial Will Test the Obama Administration’s Overhaul of the Tribunals System

Ever since its post-9/11 War on Terror declaration, the United States has faced continuous scrutiny over its detention, treatment, and trial of enemy combatants. On Wednesday, November 9, the first militar

y commission case during Obama’s term commenced with the arraignment of Abd al-Rahim al-Nashiri. A Saudi citizen, Nashiri was charged with the 2000 bombing of the U.S.S. Cole, which killed 17 American sailors and was captured by the CIA in 2002 and held at a “black site” prison. During his detention, he endured “enhanced interrogation techniques” including two instances of waterboarding. After four years, Nashiri was transferred to Guantanamo Bay, where he is currently detained along with other “high-value” detainees, including the self-proclaimed “mastermind” of the September 11 attacks, Khalid Sheikh Mohammed.

At his arraignment, Nashiri reserved his right to plea at a later time to the series of charges presented against him. The charges include murder in violation of the laws of war and conspiracy to commit acts of terrorism related to the U.S.S. Cole bombing. He was additionally charged with the attempted bombing of another American warship and the attack against a French supertanker MV Limburg. If convicted, Nashiri faces the death penalty, a first for the military commissions. However, if Nashiri is acquitted, he could still be perpetually detained at Guantanamo.

Although one of Obama’s first acts as president was a pledge to close Guantanamo Bay’s naval detention center, Congress has blocked his efforts. This case marks the first military commission since Obama resumed war crimes prosecution. Accordingly, Nashiri’s case raises questions and concerns that have captivated both the media and the legal community. These concerns involve how the Obama administration will move forward with Guantanamo Bay detainees.

The basic and overarching concern is whether the military commissions can provide the same impartial trial as a federal criminal court. Since Obama’s election, the government has attempted to create due-process protections and improve transparency in military commissions through the Military Commissions Act of 2009 and the newly implemented 200-page regulations governing military commissions. The government’s hope is that these regulations will increase transparency, aligning the procedures with federal courts and ensuring a fair trial. In an attempt to show a reformed tribunals system, the military broadcasted Nashiri’s arraignment live within a closed circuit at the Army base at Ford Meade, Maryland.

Nashiri’s trial also raises the unsettled rules of evidence issue. While the Federal Rules of Evidence govern cases tried in courts-martial and the federal courts, military commissions are not subject to the same regulations and have more lenient standards for introducing evidence. Most significantly, hearsay, which is inadmissible under the Federal Rules of Evidence, is allowed in military commissions. This policy rests on the theory that bringing in and deposing witnesses, usually other detainees and undercover operatives, could subvert the national security objective. Alternatively, the officer who reviews the submitted reports containing the evidence may safely testify to its contents. However, Nashiri’s lead counsel and death penalty expert, Richard Kammen, explained that because the regulations completely differ from those governing a federal court, that his client’s trial will be “hopelessly unfair.”

The trial will additionally test the limits of admissibility of evidence obtained through “enhanced interrogation techniques,” such as the now-denounced practice of waterboarding. Kammen is hoping that the court will consider Nashiri’s torture as a mitigating factor and preclude the death penalty as a possible sentence if convicted. The prosecution, led by Brig. Gen. Mark Martins, asserts that the trial will strictly adhere to the rules governing the trial, and so long as the evidence obtained by torture is not admitted, it should not play a role in Nashiri’s sentencing.

Law-experts question whether Nashiri can properly be charged for violating the laws of war. The bombing of the U.S.S. Cole took place in 2000, a year before the United States declared war on terror and before Congress enacted the Authorization for Use of Military Force Against Terrorists (AUMF). The AUMF allows the President to use all “necessary and appropriate force” against those materially connected to Al Qaeda and the Taliban. In response, the government asserts that Osama bin Laden, Al Qaeda’s leader, declared war against the United States in 1996 and created a state of war sufficient to invoke the laws of war. The controversy over the date in which the war began and consequently when the laws of war went into effect is tied to the non-traditional nature intrinsic to conflict with non-state military actors. Regardless of the outcome, Nashiri’s trial, set for November 2012, will serve as a blueprint for the procedure of future Guantanamo detainees, including Khalid Sheikh Mohammed whose trial venue – federal court or military commission – has yet to be determined.

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