(Guantanamo Bay, Cuba) The tranquil shores and gentle, island breezes of Guantanamo Bay, Cuba must feel a million miles away from the battlefield to Abd al-Nashiri. Yet on Wednesday, this is where he'll be arraigned for his alleged role in the USS Cole bombing on October 12, 2000.
The referred charges allege that al-Nashiri was in charge of the planning and preparation for the attack in the Port of Aden, Yemen that killed 17 sailors and wounded 37 more.
Army Brig. Gen. Mark Martins, the military commission's chief prosecutor in the case, laid out the procedure for reporters Tuesday. "The charges are read in open court unless the accused waives it...and then the accused is called upon to plea. It's a process with very limited objectives."
Although he refused to comment on Wednesday's specifics, Martins was pressed on the issue of CIA treatment of detainees, and asked if he was concerned going forward with military commissions.
"Let me start with an important provision in the Military Commissions Act that requires statements that are admitted to be voluntary, and it precludes the admission of any statement obtained as a result of torture or cruel, inhuman or degrading treatment," he said, adding later, "I will not seek nor will prosecutors who work for me seek to introduce statements of that character."
Al-Nashiri is one of three high-value detainees known to have been waterboarded in the CIA's secret prisons. He was also subjected to mock executions with a power drill, and videotapes of his controversial questioning were destroyed.
And al-Nashiri's legal team made it clear late Tuesday afternoon they plan to make that issue the centerpiece of their defense.
Lead council Richard Kammen told reporters, "One of the very powerful arguments that we intend to make at every stage of the proceedings is that by torturing Mr. Nashri, the United States really lost all moral authority to try and kill him."
Military officials referred al-Nashiri's charges to a capital military commission in September, meaning that if convicted, he could be sentenced to death.
According to Military Commission rules, a guilty verdict and the imposition of a sentence must have the concurrence of at least two-thirds of the Military Commission members, the same number required in courts-martial of US service members. Sentences that include confinement for ten years or more must have the concurrence at least three-fourths of the members. If less than the required percentage votes for conviction, the accused is acquitted. In other words, there are "hung juries" as with civilian courts.
Kammen told reporters his client was relieved to be in court and have the proceedings getting underway. However, Kammen's attitude toward their first day in court was far less rosey.
"We have not been provided the first scrap of discovery, so we don't have any real idea on what the government bases its case...we are approaching it as though they have no case."
When asked if he thought military commissions were a good idea, he responded briskly, "No - they are organized to convict, organized to kill."
For his part, Martins stressed the importance of a transparent and open arraignment. Yet he conceded that national security came first, telling reporters that the government must "surgically remove those items where lives are at stake" and that "our nation's secrets are not an open book. There are some things we have to protect."
Members of the media who have traveled to GTMO for the arraignment will be allowed to either enter the courtroom and watch it live, or view the proceedings via closed-circuit television, with a delay. An unofficial transcript will be released on Thursday.