Another Delay in the al-Nashiri Case at Gitmo

Pre-trial hearings in the military commission case against Abd al-Rahim al-Nashiri, the alleged U.S.S. Cole bomber, were set to begin Monday for the first time since last year. After only ten minutes in session, the judge, Colonel James Pohl, ruled to delay the hearing until Wednesday morning after civilian defense counsel Richard Kammen said his client no longer had confidence in him. Under the military commissions act, which governs the proceedings, the accused must have learned counsel in addition to military counsel.

If the issue is resolved and the hearing continues tomorrow, observers expect to see deliberation on a variety of procedural issues. Notably, under a provision (section 1037) in the National Defense Authorization (NDAA) for fiscal year 2014, the Chief War Crimes Prosecutor and Chief Military Defense counsel must be of equal rank. This could prove problematic as the lead prosecutor, General Mark Martins, outranks the lead defense counsel, a Colonel. Interestingly, the Secretary of Defense can waive the rank requirement, which means this could all be an empty gesture that no one is actually prepared to comply with; time will tell.

Regardless, it seems to be yet another quirk of the military commissions due to their being constantly reinvented, this time by Congress via the NDAA. Of course, the result would be another delay. It’s hard to ignore the efficiency of federal courts in light of these setbacks.

In addition to my observing from Ft. Meade in Maryland, Human Rights First has sent Major General Paul D. Eaton, USA (Ret.) to Guantanamo to get a firsthand look and we’ll be reporting back tomorrow as the case moves forward.