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Incompetency: An Easy Way for Obama to Deal with the USS Cole Case?

Charges against al-Nashiri have been dropped once before, and the prosecution based its request for a competency review on pretty standard Gitmo complaining.

by
Bridget Johnson

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February 8, 2013 - 4:17 pm
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Lawyers for accused USS Cole mastermind Ayman al-Rahim al-Nashiri have called the prosecution’s motion granted for a competency evaluation of their client senseless at this stage in the game.

Captured in 2002 and transferred to Guantanamo years later, the most recent commission proceedings began against the 48-year-old Saudi in 2011. Last November, the government filed a motion for a 706 inquiry, under the Rule for Military Commissions, to assess the capacity of the accused Persian Gulf al-Qaeda operations chief to stand trial.

Al-Nashiri’s civilian lawyer, Indiana criminal defense attorney Richard Kammen, told reporters Tuesday that it was “an unorthodox development.”

“I’m tempted to say ‘welcome to Guantanamo’ because things happen here that never happen anywhere else,” Kammen said.

But a finding of incapacity to stand trial could be a convenient finding for an administration that might rather indefinitely tuck this death penalty case away — already the forgotten case on an island where the media prefer to show up for the 9/11 trial of Khalid Sheikh Mohammed and his cohorts.

Shortly after the president took office in 2009, the Obama administration withdrew charges against al-Nashiri. At the time, Obama was hellbent on closing Guantanamo and assessing the legal rights of detainees captured under his predecessor. The judge who is still presiding over the case, Col. James Pohl, tried to stop the government’s stalling, ruling the public had the right to see al-Nashiri move to a speedy trial.

In 2010, the Justice Department said “no charges are either pending or contemplated with respect to al-Nashiri in the near future.” After outcry over the Justice Department’s attempt to try Mohammed in federal court in New York, the Defense Department filed the current capital case against al-Nashiri in the Guantanamo commission.

In its filing asking for the competency hearing, the prosecution said “the accused made several statements during the last motions hearing that raise the issue of the accused’s ability to participate meaningfully in his trial and, therefore, call into question whether the accused lacks the capacity to stand trial.”

Previous hearings were in October 2012. “I would like to draw your attention to something very important,” al-Nashiri told the judge then. “You have the right to know directly from the accused why he doesn’t want to attend. The accused might have threats right there back in the prison so that he doesn’t come here and talk. You need to know why I didn’t come, not just to come here and read all this stuff to me. I might be going under threats so I don’ t come here and talk about things. Is that possible?”

Al-Nashri complained to Pohl that he had the right to a comfortable chair in court and claimed belly chains made his bad back uncomfortable. He said “my nerves are also bad” and accused the guards of “aggressions,” which the prosecution seized on in its competency filing.

“I have been, for the last ten years, with nobody to hear what I have to say,” he said. “…When they place me in a bad car and transport me here, when I’m really tired and getting sick and throwing up, I have the right to tell you I need a more comfortable vehicle to bring me here. …I do intend to attend all future sessions, but if the guards do not treat me better, I have the right not to come and let the world know that the judge sentenced me to death because I didn’t show up to court due to chains.”

Suffice to say such complaints from terrorism suspects aren’t surprising. Al-Nashiri showed up both days in court last week, sitting quietly, unshackled, and at one point was given a gray jacket to put over his white jumpsuit.

“Those statements, coupled with previous assert ions from defense counsel, support ordering the inquiry,” the government stated in its motion. “…The defense also alleged the accused ‘is likely suffering from numerous undiagnosed psychological and physical ailments resulting from his mistreatment, such as post-traumatic stress disorder.’”

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