Guantanamo Trial Opens With A Series Of Firsts
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The trial of Abd al-Rahim al-Nashiri marks a series of firsts. This is the first military commission case entirely initiated by the Obama administration. He is the first detainee to be subjected to new rules that are supposed to make these military trials more transparent.
"It is the first high-value, high-profile detainee to go through this process," said Matt Waxman, who was in charge of detainee affairs during the Bush administration and is now a professor at Columbia University Law School. "And the case involves the death penalty, so, if we get to that stage, that's going to raise all kinds of interesting and very, very controversial legal, strategic and diplomatic issues."
The military commissions haven't had to decide a death penalty case before, either. So, amid all these firsts, Wednesday's trial has become a test of sorts — a test of whether a separate military justice system in Guantanamo can provide the same impartial justice as a criminal court in the United States.
USS Cole
Add to all that: The case of al-Nashiri is complicated, too. The 46-year-old is accused of planning the bombing of the USS Cole and a handful of other attacks. The Cole was refueling in Yemen in 2000 when a rubber boat full of explosives drew up alongside and detonated: 17 servicemen and servicewomen died in the attack, and scores were injured.
For his alleged role, al-Nashiri is being charged with war crimes — including terrorism, conspiracy and murder. The problem is that the attack happened before Congress passed an authorization to use military force against al-Qaida. So that makes charging him with war crimes potentially problematic.
Another issue: Al-Nashiri was arrested in 2002 and then disappeared for nearly four years. The CIA has since acknowledged that he was in its custody and that he was waterboarded and subjected to other enhanced interrogation techniques. Among other things, a drill was run near his head, and his family was threatened. That means the military commission will have to grapple with torture in this case as well. For people tracking the progress of Guantanamo detainees, there will be a more basic milestone Wednesday: When al-Nashiri walks into the courtroom, it will be the first time he's been seen in public in nine years.
'Not Fair Or Legitimate'
Richard Kammen, al-Nashiri's lead attorney, was hired as what is known as "learned counsel." In other words, he is a death penalty expert. In federal courts, when it is a capital case, defendants have to get a lawyer who knows how to try a death penalty case. The military commissions now have that provision, too. Al-Nashiri's case is the first time that regulation will be in force.
Kammen met reporters in an empty airplane hangar just a stone's throw from the courthouse Tuesday. He is quick to offer a list of reasons why he thinks the deck is stacked against his client. For example, even though the arraignment is Wednesday, he says the government has yet to give the defense any discovery. The Pentagon released the more than 200 pages of new rules governing the commissions, but that was just two days ago.
Kammen said the first time he saw the new rules was this week.
"This is so completely unorthodox and so different than what would occur in a federal court," he told reporters. "We're all going to be dressed in suits; it is going to look like a court. It is not a real court; this is not fair or legitimate. It is a court organized to convict and a court organized to kill."
Withstanding Scrutiny
The Obama administration and key military officials disagree. Brig. Gen. Mark Martins is the chief prosecutor of military commissions. Essentially his role is like that of a U.S. attorney in the federal court system: Martins is the man who decides which detainees will have a military commission trial and when.
As he sees it, two acts of Congress, a Supreme Court decision and an executive review have helped craft a system to try terrorists, and all that input has created a system that is fair.
"Reasonable people looking at this system will see that it really will withstand scrutiny," he said.
The scrutiny begins in earnest Wednesday, and not just because there will be people in the courtroom watching the proceedings. A closed-circuit television feed will broadcast the arraignment to the United States for the first time. It can be seen at Fort Meade, Md., and the public is allowed to attend. There will be about 100 seats.
U.S. Soldier Convicted In 'Thrill Kill' Of Afghans
http://www.npr.org/2011/11/10/142226600/u-s-soldier-convicted-in-thrill-kill-of-afghan-civilians?plckFindCommentKey=CommentKey:b685aa7f-58f5-462c-b427-34a2050327e0A U.S. Army soldier accused of exhorting his bored underlings to slaughter three civilians for sport was convicted of murder, conspiracy and other charges Thursday in one of the most gruesome war crimes cases to emerge from the Afghan war.
Staff Sgt. Calvin Gibbs, of Billings, Mont., was the highest ranking of five soldiers charged in the deaths of the unarmed men during patrols in Kandahar province early last year. At his seven-day court martial at Joint Base Lewis-McChord south of Seattle, the 26-year-old acknowledged cutting fingers off corpses and yanking out a victim's tooth to keep as war trophies, "like keeping the antlers off a deer you'd shoot."
But he insisted he wasn't involved in the first or third killings, and in the second he merely returned fire.
Prosecutors said Gibbs and his co-defendants knew the victims posed no danger, but dropped weapons by their dead bodies to make them appear to have been combatants.
Three of the co-defendants pleaded guilty, and two of them testified against him, portraying him as an imposing, bloodthirsty leader. Gibbs' lawyer insisted they conspired to blame him for what they had done and told the five jurors the case represented "the ultimate betrayal of an infantryman."
The jury deliberated for about four hours before convicting him. He faces, at minimum, life with parole, and at maximum life without it. The sentencing hearing began immediately after the verdict was announced.
The investigation into the 5th Stryker Brigade unit exposed widespread misconduct — a platoon that was "out of control," in the words of a prosecutor, Maj. Robert Stelle. The wrongdoing included hash-smoking, the collection of illicit weapons, the mutilation and photography of Afghan remains, and the gang-beating of a soldier who reported the drug use.
In all, 12 soldiers were charged; all but 2 have now been convicted.
The probe also raised questions about the brigade's permissive leadership culture and the Army's mechanisms for reporting misconduct.
After the first killing, one soldier, then-Spc. Adam Winfield, alerted his parents and told them more killings were planned, but his father's call to a sergeant at Lewis-McChord relaying the warning went unheeded. Winfield later pleaded guilty to involuntary manslaughter in the last killing, saying he took part because he believed Gibbs would kill him if he didn't.
The case against Gibbs relied heavily on testimony from former Spc. Jeremy Morlock, of Wasilla, Alaska, who is serving 24 years after admitting his involvement in all three killings.
According to Morlock, Gibbs gave him an "off-the-books" grenade to use in the first killing — a teenager in a field — in January 2010; killed the second victim and tossed an AK-47 at his feet to make him appear to have been an enemy fighter the next month; and threw a grenade at the third victim, in May, as he ordered Morlock and Winfield to shoot.
Morlock and others told investigators that soon after Gibbs joined the unit in 2010, he began talking about how easy it would be to kill civilians, and discussed scenarios where they might carry out such murders.
Asked why soldiers might have agreed to go along with it, Morlock testified that the brigade had trained for deployment to Iraq before having their orders shifted at the last minute to Afghanistan.
The infantrymen wanted action and firefights, he testified, but instead they found themselves carrying out a more humanitarian counterinsurgency strategy that involved meetings and handshaking.
Another soldier, Staff Sgt. Robert Stevens, who at the time was a close friend of Gibbs, told investigators that in March 2010, he and others followed orders from Gibbs to fire on two unarmed farmers in a field; no one was injured. Gibbs claimed one was carrying a rocket-propelled grenade launcher, but that was obviously false, Stevens said.
Stevens also testified that Gibbs bragged to him about the second killing, admitting he planted an AK-47 on the victim's body because he suspected the man on involvement with the Taliban, according to a report on the testimony in The News Tribune newspaper of Tacoma.
But during the trial, Gibbs insisted he came under fire.
"I was engaged by an enemy combatant," he said. "Luckily his weapon appeared to malfunction and I didn't die."
Gibbs testified that he wasn't proud about having removed fingers from the bodies of the victims, but said he tried to disassociate the corpses from the humans they had been as a means of coming to terms with the things soldiers are asked to do in battle.
The muscular 6-foot-4 staff sergeant also testified that he did it because other soldiers wanted the trophies, and he agreed in part because he didn't want his subordinates to think he was a wimp.
Gibbs initially faced 16 charges, but one was dropped during the trial.
Staff Sgt. Calvin Gibbs, of Billings, Mont., was the highest ranking of five soldiers charged in the deaths of the unarmed men during patrols in Kandahar province early last year. At his seven-day court martial at Joint Base Lewis-McChord south of Seattle, the 26-year-old acknowledged cutting fingers off corpses and yanking out a victim's tooth to keep as war trophies, "like keeping the antlers off a deer you'd shoot."
But he insisted he wasn't involved in the first or third killings, and in the second he merely returned fire.
Prosecutors said Gibbs and his co-defendants knew the victims posed no danger, but dropped weapons by their dead bodies to make them appear to have been combatants.
Three of the co-defendants pleaded guilty, and two of them testified against him, portraying him as an imposing, bloodthirsty leader. Gibbs' lawyer insisted they conspired to blame him for what they had done and told the five jurors the case represented "the ultimate betrayal of an infantryman."
The jury deliberated for about four hours before convicting him. He faces, at minimum, life with parole, and at maximum life without it. The sentencing hearing began immediately after the verdict was announced.
The investigation into the 5th Stryker Brigade unit exposed widespread misconduct — a platoon that was "out of control," in the words of a prosecutor, Maj. Robert Stelle. The wrongdoing included hash-smoking, the collection of illicit weapons, the mutilation and photography of Afghan remains, and the gang-beating of a soldier who reported the drug use.
In all, 12 soldiers were charged; all but 2 have now been convicted.
The probe also raised questions about the brigade's permissive leadership culture and the Army's mechanisms for reporting misconduct.
After the first killing, one soldier, then-Spc. Adam Winfield, alerted his parents and told them more killings were planned, but his father's call to a sergeant at Lewis-McChord relaying the warning went unheeded. Winfield later pleaded guilty to involuntary manslaughter in the last killing, saying he took part because he believed Gibbs would kill him if he didn't.
The case against Gibbs relied heavily on testimony from former Spc. Jeremy Morlock, of Wasilla, Alaska, who is serving 24 years after admitting his involvement in all three killings.
According to Morlock, Gibbs gave him an "off-the-books" grenade to use in the first killing — a teenager in a field — in January 2010; killed the second victim and tossed an AK-47 at his feet to make him appear to have been an enemy fighter the next month; and threw a grenade at the third victim, in May, as he ordered Morlock and Winfield to shoot.
Morlock and others told investigators that soon after Gibbs joined the unit in 2010, he began talking about how easy it would be to kill civilians, and discussed scenarios where they might carry out such murders.
Asked why soldiers might have agreed to go along with it, Morlock testified that the brigade had trained for deployment to Iraq before having their orders shifted at the last minute to Afghanistan.
The infantrymen wanted action and firefights, he testified, but instead they found themselves carrying out a more humanitarian counterinsurgency strategy that involved meetings and handshaking.
Another soldier, Staff Sgt. Robert Stevens, who at the time was a close friend of Gibbs, told investigators that in March 2010, he and others followed orders from Gibbs to fire on two unarmed farmers in a field; no one was injured. Gibbs claimed one was carrying a rocket-propelled grenade launcher, but that was obviously false, Stevens said.
Stevens also testified that Gibbs bragged to him about the second killing, admitting he planted an AK-47 on the victim's body because he suspected the man on involvement with the Taliban, according to a report on the testimony in The News Tribune newspaper of Tacoma.
But during the trial, Gibbs insisted he came under fire.
"I was engaged by an enemy combatant," he said. "Luckily his weapon appeared to malfunction and I didn't die."
Gibbs testified that he wasn't proud about having removed fingers from the bodies of the victims, but said he tried to disassociate the corpses from the humans they had been as a means of coming to terms with the things soldiers are asked to do in battle.
The muscular 6-foot-4 staff sergeant also testified that he did it because other soldiers wanted the trophies, and he agreed in part because he didn't want his subordinates to think he was a wimp.
Gibbs initially faced 16 charges, but one was dropped during the trial.
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