GUANTANAMO BAY NAVAL BASE, Cuba (CN) – “Before 9/11 there was 10/12,” said Paul Abney. When al-Qaida killed 17 crew members of the USS Cole on Oct. 12, 2000, Abney had been chief master of the ship.
The career Navy man spoke to reporters last week outside the Guantanamo Bay war court, after yet another hearing in the long road to trying the accused mastermind of the USS Cole attack, Abd al-Rahim al-Nashiri.
Abney, 58, said the trauma of the bombing still plagues survivors, yet is often overlooked in these pretrial hearings where the focus rarely strays from the CIA’s torture program.
Offering a grisly reminder, Abney described life on board the U.S. Navy destroyer in the days after the slaughter off the coast of Aden, Yemen. Fear of a second attack ran high as sailors worked arduously to ensure the ship stayed afloat. The Cole had no functioning power, air conditioning or weapons systems, he said.
Sailors who could stomach it kept watch in 120-degree temperatures amid the smell of rotting food, Abney recalled, as tears welled in his eyes..
Abney is not alone in expressing frustration about the focus on defendants in war court cases. During the last round of pretrial hearings for the accused 9/11 plotters, relatives of men and women killed in the attacks also complained about the focus on the torture detainees experienced.
But the issue of torture is hard to escape at Guantanamo. Nearly all of the classified discovery in the three active military commission cases pertains to the CIA’s torture program, and defense attorneys will likely cite how these men were treated in CIA custody as a mitigating factor to argue against imposition of the death penalty.
The CIA has admitted to waterboarding al-Nashiri, racking an unloaded automatic handgun near his head and revving a power drill near him.
At a February 2007 review tribunal of his combatant status, al-Nashiri described being hung upside down for a month, being nearly drowned, and being hit into a wall, which he said left scars on his head.
The American Civil Liberties Union obtained transcripts of some of these hearings through a request under the Freedom of Information Act.
As reported in June by The New York Times, al-Nashiri spoke at his hearing about being forced to stand in a box for a week.
“My feet were swollen,” the prisoner had said. “My nails were about to fall off because I was standing on my feet for long time.”
Abney meanwhile said that nearly all surviving shipmates have severe symptoms of post-traumatic stress disorder. Yet al-Nashiri’s brain injuries are all they seem to hear about.
Air Force Col. Vance Spath, the military judge in the al-Nashiri case, ordered an MRI for the detainee in April 2015 to assess any brain damage caused by torture.
For survivors of the attack, the disconnect is hard to stomach. “I’ve got shipmates left and right that have never had any TDI screening,” Abney said, abbreviating traumatic brain injury. “They had a serious concussion blow up right next to them. They were on a ship that was moved through the air.”
The last image Abney has of one shipmate is of the man hurtling over his head, about 20 feet through the air after the blast.
Abney has never been screened for traumatic brain injury either, and believes he has aspects of PTSD.
“This human-factor side of the story rarely gets covered,” he said. “Because it’s all about this individual, who helped – allegedly – plan the bombing that, not only did this to all my shipmates, but also killed 17 shipmates.”
As in the 9/11 case, the Department of Defense flies survivors and family members down to Guantanamo for pretrial hearings. Abney has been down to watch the proceedings twice before, once in February 2012 for the first pretrial hearing after al-Nashiri’s arraignment, and again in February 2014.
The visual aspect of the courtroom is different in the al-Nashiri case than it is in the 9/11 case, which has five defendants with long beards who wear traditional Middle Eastern clothing to court, and require prayer breaks during hearings.
The al-Nashiri hearings are more subdued.
When guards escorted al-Nashiri into the courtroom on Oct. 17, the defendant wore plain white pants and a short-sleeve white shirt. Al-Nashiri, now 51, has short brown hair and no beard. He does not ask for breaks to pray and is not disruptive, like some of the accused 9/11 plotters.
Friendly with his defense team, al-Nashiri and a legal aid hugged briefly before the Oct. 17 hearing when the legal aid brought the defendant a jacket. After the hearing, al-Nashiri shook hands with members of his defense team, lingering on each shake.
Audio of the proceedings is on a 40-second delay to protect against spills of classified information, but these scenes play out in real-time for those in the gallery – journalists, nongovernmental organizations and survivors alike – who watch through glass windows at the back of the courtroom.
“He looks well-fed and happy,” Abney said of al-Nashiri.
For survivors, the content of the proceedings is often as difficult to digest as seeing the accused themselves.
Richard Kammen, lead defense counsel for al-Nashiri, insinuated throughout three days of hearings last week that the rules governing the proceedings render the military commission a “kangaroo court.”
Many of the Guantanamo defense attorneys are critical of the military commissions. They say the commissions lack the rigorous and more timely procedural structure that federal courts offer, as well as their constitutional guarantees.
Representatives for the government counter that the rules governing the commissions are clear and fair. Denying assertions by the defense that some provisions of the Military Commissions Act exceed congressional constitutional authority, the chief prosecutor said the military commissions comply with the Constitution.
“My basic comment is people either dismiss history, conveniently ignore certain important doctrines or fail to grasp the situation, or all of the above,” Army Brig. Gen. Mark Martins said at a press conference after the recent 9/11 hearings. “We’re following the law here and we’re committed to doing that. It’s going to take a long time. It’s a sharply adversarial process, although it can be frustrating, and I feel for those family members. We’ll do it as long as we have to do it.”
Kammen is particularly outspoken on this issue. He wears a kangaroo pin on his jacket lapel to court during the hearings, and has been known to bring a stuffed kangaroo to court with him. Though he carries the kangaroo with him in a backpack, Kammen said in an interview that he has not brought it out in the courtroom since Spath took over the case.
Abney bristles at the preference toward federal court and criticisms of the military commission.
“We’re constantly talking about how it’s not like a federal court,” Abney said. “I don’t like the kangaroo that he wears. And I don’t like the kangaroo comments that he makes.”
Abney blames incorporation of federal court rules into the military commission for slowing the process down, creating a “blended system” that must set entirely new precedent.
“The United States, I would say, is being overly generous in taking them out of the military court-martial system,” Abney said.
Kammen sympathized with the desire by survivors to see the system as legitimate.
“I understand that this is the only forum they have, and so they want to see it as legitimate,” Kammen said. “And I really do understand that and respect that.”
As to his repeated mentions of the kangaroo court, Kammen said they come from a belief that the commission “has rules structured in such a way that a conviction is almost a certainty, irrespective of whether Mr. al-Nashiri is actually guilty.”
Kammen cited jury selection and the admissibility of hearsay evidence as examples to illustrate his point. Unlike a typical jury trial, there will be no voir-dire.
Instead of subjecting potential jurors to questions by the judge and attorneys, Kammen said jurors will be hand-picked by the Guantanamo convening authority, which refers the charges against the accused. And unlike federal courts and the courts-martial system, hearsay evidence or second-hand testimony will be admissible.
According to the Military Commissions Act, any hearsay evidence will need to undergo the scrutiny of the trial judge and meet certain criteria.
But Kammen said hearsay “will be routinely admissible irrespective of whether it’s accurate or correct.”
The D.C. Circuit rejected a petition last year to determine whether the military commission system or a federal court is the proper venue for al-Nashiri’s trial. Kammen said the federal appeals court will revisit the jurisdictional question only if al-Nashiri is ever convicted and then appeals.
That could be 10 years from now, Kammen said.
“If this case shouldn’t be in Guantanamo, if it should really be in a federal court,” Kammen said. “Why not have it in federal court? It’s unfair to Nashiri. We also think that’s really unfair to the victims and their families and the survivors and their families.”
Meantime, Abney says that 16 years has been a long time already to wait for justice.
“I would just like to see it move along and get to an actual trial,” he said.
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