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

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.'”

Defense lawyers have welcomed the development from the standpoint of having a greater platform from which to talk about al-Nashiri’s torture as having formed his current mental state. Prosecutors have repeatedly stressed that this is a limited-scope inquiry to determine whether he’s competent enough to understand proceedings and assist in his defense — it puts no judgment on whether al-Nashiri was competent at the time of the crime, and the defense said they won’t be alleging that he wasn’t.

Navy Lt. Cmdr. Stephen Reyes noted in court this week that it’s unusual for the prosecution to be the  party seeking the competency review. But the defense especially took issue with the government’s desire to keep prosecuting the case even while the weeks-long competency review is conducted.

“If there is a belief that the defendant is incompetent, a belief affirmed by the granting of your motion, Your Honor, why would we want to go on, argue motions, and engage in a colloquy with the defendant, talk about very substantive motions when there’s grounds to believe that he’s incompetent and cannot — because the competency evaluation goes to one question, one question only: Is he competent to stand trial?” Reyes argued on behalf of al-Nashiri. “But it’s okay to proceed forward as if that really isn’t an issue.”

“We asked for a 706 board because there is evidence that supports that. We submit it does not rise to a preponderance of the evidence that the accused is presently suffering from a mental disease or defect such that he’s incapable of understanding the proceedings or cooperating intelligently in his defense,” said prosecutor Anthony W. Mattivi in a request to move forward.

“I just struggle with the concept of an outstanding issue about competency to stand trial and then we just proceed as if he is competent,” Pohl said before suspending proceedings to allow for the capacity review.

If found incompetent, al-Nashiri would simply be held until he’s found to be competent. Kammen told reporters it’s his understanding his client would be “put into a facility to try to restore competence — if that were to occur, the situation would progress.”

Chief Prosecutor Brig. Gen. Mark Martins said his team “would certainly like to move faster but not at the risk of creating an issue.” He concurred that “if someone at a later time with appropriate treatment becomes competent” then a trial can proceed.

For an administration that unsuccessfully tried to wish away this case once before, a finding of incompetency could be a no-muss solution to one of two death penalty cases at Gitmo.

If al-Nashiri went to trial — as is hoped by next year — and was acquitted, the government would still want to hold him in the face of international criticism.

If al-Nashiri was found guilty, the government would be under pressure to hand down the maximum possible penalty in the attack that killed 17 American sailors in October 2000. That would mean putting an al-Qaeda figure to death, something the U.S. may be unwilling to do especially as the administration has put a premium on building relations in the Muslim world — though appeals would surely spill into future administrations before such a sentence could be carried out.

A finding of incompetency by the evaluation board, which would then be brought back to the military commission in April, would allow the government to quietly, indefinitely wipe its hands of the case — but would bring little relief to the USS Cole victims and families that in February 2009 were promised “swift and certain justice within a legal framework that is durable” in a meeting with Obama.

Stay tuned to PJM for ongoing coverage of the Guantanamo tribunals.