By of the end of 2012, more than $560,000 in taxpayer dollars had been provided to the defense of accused USS Cole bombing mastermind Abd al-Rahim al-Nashiri just for experts, investigators, and consultants.
That doesn’t count the money allocated by the Defense Department to spend on travel, learned counsel, translators, a full-time investigator, office expenses, lodging, and other logistics costs for the defense team, noted chief prosecutor Mark Martins at Guantanamo Bay today.
Although that experts sum is nearly double the average cost for all expenses and salaries in a federal court death-penalty trial, al-Nashiri’s case is still at a competency stage in pretrial hearings — and the military judge approved a defense request for one controversial expert witness to deliver testimony this week related to the U.S. government, torture, and the accused operative of Osama bin Laden.
Vincent Iacopino is principal author of the Istanbul Protocol: the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the United Nations in 1999. “The whole purpose of this manual is so that perpetrators can be prosecuted,” Commander Andrea Lockhart said for the prosecution at the military commission, arguing it has nothing to do with the psych evaluation of al-Nashiri requested by the government.
Al-Nashiri’s civilian lawyer, Indiana criminal defense attorney Richard Kammen, said no part of their defense would hinge on his mental state at the time of the Yemen attack, nor have they suggested their client isn’t competent to stand trial.
Kammen said he came to the matter “with a fairly jaded outlook — let’s just say there were lots of doctors involved with Mr. Nashriri who didn’t follow the Hippocratic Oath.” He argued that al-Nashiri has “functionally untreated” post-traumatic stress disorder due to torture and said he didn’t trust the court’s panel of experts to assess the “unique population” of terror suspects who’ve “been kept in very onerous circumstances.”
Prosecutor Anthony W. Mattivi read from the introduction to the Istanbul Protocol, noting the defense had moved multiple times before to bring the document’s author into the case. “Take a look at this document,” he said. “What you will find is it is not relevant for the purposes it was offered by the defense.”
In The Guardian in 2011, Iacopino wrote of “documenting medical evidence of torture” and serving as an expert in a number of Guantanamo cases.
“In each of the cases that I have evaluated, the physical and psychological evidence of torture is consistent with the UN Convention Against Torture’s definition of torture,” Iacopino wrote. In a 2002 paper, he called torture a “weapon of mass destruction.”
Al-Nashiri, a 48-year-old Saudi, is charged with murder, terrorism, and other counts in an attempted attack on the USS The Sullivans in January 2000, the attack on the USS Cole in October 2000, and an attack on the MV Limburg in October 2002. Seventeen sailors were killed and dozens injured when an explosive-laden boat rammed the Cole in the port of Aden, and one crew member was killed in the attack on the Limburg oil tanker.
Clean-shaven unlike the other al-Qaeda suspects facing the death penalty in last week’s case, with neatly cropped hair and a white jumpsuit, al-Nashiri sat quietly with his hands folded during the proceedings, wearing translation headphones and later in the day donning a gray jacket.
He is one of three individuals former CIA Director Michael Hayden admitted to waterboarding at the agency’s overseas sites. Arrested in the United Arab Emirates in 2002, al-Nashiri was transferred to Gitmo to stand charges as an enemy combatant in 2006. “From the time I was arrested . . . they have been torturing me,” he said in 2007 during his first case, in which charges with withdrawn in 2009 and refiled in 2011. “One time they tortured me one way, and another time they tortured me in a different way.” Al-Nashiri claimed he made up information during his interrogations to make his questioners “happy.”
It was a good day for his defense team, as they also won the suspension of proceedings while the government mental-health evaluation of their client is conducted in the next few weeks, and the right for a doctor to give him a physical examination with the prisoner unrestrained. The defense argued that a shackled physical exam would cause their client “retraumatization.”
Judge James Pohl ruled Dr. Sondra Crosby has the right to examine al-Nashiri as she best sees fit, saying a professional appointed to do a certain task needs to have the leeway. “If she wanted to do it in a meadow that would not be within reason,” Pohl said, approving of an exam with guards outside the room and video but no audio feed.
It was a mixed bag, though, for the defense request to abate proceedings until it could be assured that no one was eavesdropping on their privileged conversations. The ruling on this was a trial run for professed 9/11 mastermind Khalid Sheikh Mohammed’s defense team next week, which filed the same motion after it was revealed last week that a “third-party,” presumably the CIA, had arbitrarily censored the courtroom feed to reporters.
Pohl ordered that censoring authority be taken away from any third party, but defense attorneys said the incident sparked concern about how private their private conversations really are.
“Recent events have revealed that there is a third party organization that has the ability to monitor these proceedings,” Navy Lt. Cmdr. Stephen Reyes said. “We do not know to what extent they are able to listen to our conversations.”
“We don’t know what organization is doing the listening. If it is the CIA… this is the same organization that detained and tortured al-Nashiri.”
“What is your evidence of listening to conversations?” Pohl grilled Reyes, saying the lawyer appeared to want a “motion to stop everything to investigate if I have a motion.” Drawing the conclusion that the third party was snooping on the defense because it cut the public feed during a portion it deemed to be sensitive material (the judge didn’t agree) was “apples and oranges,” Pohl said.
“I believe they’re actually identical, your honor,” Reyes said.
“Do you really think that in cases involving classified information stakeholders don’t take an interest in the proceedings?” Pohl asked.
Reyes wanted witnesses to come in and describe the technological setup for monitoring in the courtroom, holding cells, and conference room where lawyers meet. “They have been hiding their existence; only through some type of fluke or mistake is their existence known,” he said. “We have an ethical obligation to at least find out; we need somebody to actually look at this from an outside perspective.”
Stressing “the defense has a responsibility to do at least a modicum of investigation,” Mattivi noted a placard at each seat that advises lawyers to mute their microphones before engaging in sidebar conversations.
Denying their motion to abate proceedings, Pohl begrudgingly allowed an unusual three-hour recess for the defense to investigate their suspicions of being spied upon.
Upon returning, Kammen said they interviewed two people familiar with the court’s technology and discovered “the courtroom is a huge listening device.” Defense tests revealed whispering could be heard even with a muted microphone and the only safe place for privileged conversations was in the corner of the courtroom. The court reporter “made clear” he wasn’t allowed to answer questions about a third party listening in or not.
“Once we realize there’s a man behind the curtain we can’t just say, ‘Ignore the man behind the curtain,’” Reyes said.
There’s no trial date yet for al-Nashiri, whose case, going into this week, already consisted of 105 motions, more than 200,000 prosecution documents, and 14 months of discovery for the defense.
In his ruling on Iacopino, Pohl said the UN torture protocol author is a “necessary and relevant” addition to the defense case.
“Under the U.N. Convention Against Torture, the United States is obligated to prohibit torture, ensure prompt and impartial investigations and prosecute perpetrators,” Iacopino wrote in 2003. “Additionally, on countless occasions the State Department’s Country Report on Human Rights Practices has criticized governments that torture, in some cases the same practices the U.S. is now accused of committing in its ‘war on terrorism.’”
Stay tuned to PJM for ongoing coverage of the Guantanamo tribunals.