ROGER FITCH ESQ • MONDAY, FEBRUARY 11, 2013
The United States doesn't require a war for there to be "war crimes ... Stopping the "water cure" from flowing into the trial process ... European Court of Human Rights upsets the CIA's apple cart ... Roger Fitch files from Washington
THE news media have concentrated this month on the Guantánamo 9/11 trial, where, in a moment of high farce, the sound and pictures under the delayed-response security systemabruptly vanished despite no one claiming responsibility.
As soon as a defence lawyer mentioned his motion to preserve CIA "black sites" (they are crime scenes, after all), someone pulled the plug, and it wasn't the judge or official court censor.
Whodunnit? The judge didn't know, but the prosecution did.
Equally riveting theatre could be found in a concurrent Gitmo show trial, that of the Saudi Abd al-Rahim al-Nashiri, starring the same judge, Colonel James Pohl.
Nashiri is said to have organised a 2000 attack on the USS Cole in the harbour at Aden.
Yemen was a friendly country with no war and, even with one, the Cole would be a legitimate military target.
It's clearly a civilian offence: when Nashiri's fellow Guantanamero Ahmed Ghailani was accused of bombing US embassies in East Africa, he was tried in New York before a real court and sentenced to life in prison.
To counter the apparent invalidity of Nashiri's commission charges, the specifications recite self-serving fictions, e.g. in the (only) count describing an actual war crime, "Using Treachery or Perfidy":
"NASHIRI ..., an alien unprivileged enemy belligerent subject to trial by military commission, did, in or around Aden, Yemen, on or about 12 October 2000, in the context of and associated with hostilities, invite the confidence and belief of one or more persons onboard USS COLE ... that two men dressed in civilian clothing, waving at the crewmembers onboard USS COLE ..., and operating a civilian boat, were entitled to protection under the law of war, and intending to betray that confidence and belief, did thereafter make use of that confidence and belief to detonate explosives hidden on said civilian boat alongside USS COLE ..., killing 17 Sailors of the United States Navy ..."
Sadly, without a war, Nashiri can't be a belligerent, or a person subject to trial by military commission by the law of war as required by the Military Commissions Act 2009.
There were no hostilities in Yemen in 2000.
"Perfidy" is indeed a violation of the law of war, but requires more than waving at the enemy - an accepted ruse in war, unlike, say, waving a white flag.
Nashiri wasn't originally portrayed as the Colebombing mastermind. When the other Coleaccused were indicted in New York in May 2003, Nashiri was merely an "unindicted co-conspirator".
Though already in US custody, Nashiri was not produced in New York. Apparently, the CIA was too busy torturing him in Poland in the hopes of producing incriminating "evidence" for the Manhattan cases.
The CIA admits Nashiri was waterboarded while detained by the CIA in Thailand, Poland and Romania.
Some of his treatment - as verified by the CIA Inspector General - included acts that are themselves classic war crimes, e.g. pistols and electric drills held to the head, and the "water cure".
His treatment also violates US law implementing the Convention against Torture.
As part of a mental health evaluation, Judge Pohl has agreed to let a military medical panel examine Nashiri's CIA file, including the time of torture.
However, if Nashiri hopes disclosure of torture by the CIA will assist his defence, he need only refer to a ruling by Judge Pohl in the 9/11 proceedings, that torture evidence must be kept secret on "national security" grounds - e.g. the fact it would make the CIA, Thailand, Poland, Lithuania and Romania look bad, or worse, subject them to some civil or criminal punishment.
In the end, Judge Pohl had no difficulty finding jurisdiction in Nashiri's case, by accepting there was a war in Yemen in 2000:
"The political branches have made a determination that hostilities existed between al Qaeda and the United States prior to September 11, 2001 and on the dates of the alleged offenses, evidenced by the passage of the 2009 MCA, the referral of charges in this case, and the litigation of this case since arraignment ... The political branches' collective determination is entitled to judicial deference by this commission."
In other words, if the MCA claims it applies to offences occurring before September 11, 2001, and the government prosecutes Nashiri for something that happened in 2000, the "political branches" - Congress and the president - have decided there was in fact a war in 2000, and that "decision" deserves deference.
As Kevin Jon Heller observed, "Judge Pohl's decision is one of the worst ever issued by a military-commission judge. And that, my friends, is saying something".
* * *
IF perfidy in peacetime seems a stretch, consider one of the other "war" charges against Mr Nashiri, that of planning a 2002 suicide bombing in the Gulf of Aden that killed a Bulgarian on a Luxembourg-flagged French tanker, the MV Limburg.
This is cutting-edge kangaroo: an act in international waters with no connection to the US or any war.
No problem. According to the Pentagon, the attack on the Limburg "could effect (sic) not only our own but potentially global economies. It was an oil tanker just outside the Straits of Hormuz".
Well, there you have it: it's clearly a war crime if oil is involved.
Still, why not use the 200-year old piracy laws just upheld by the Supreme Court?
A nearly identical case is being treated as piracy.
* * *
THE decision by the European Court of Human Rights in El-Masri v Macedonia (see previous post) proves the danger of serving as proxy for the CIA, and must worry other European nations being sued in the ECHR.
The countries in strife are all former Communist regimes.
Two of them, Poland and Lithuania, started working with the CIA barely a decade after ridding themselves of the hated Russians and their KGB.
One of the more ironic moments of the post-Communist era must be Donald Rumsfeld's solemn 2005 pilgrimage to the former KGB headquarters in Vilnius, Lithuania (now a memorial to victims of Russian oppression) while the CIA ran a similar torture dungeon just outside the city.
Meanwhile, Polish newspapers are reporting the existence of a document signed by Poland's former prime minister concerning the secret CIA prison in that country and what to do "if a dead body of one of the persons held there should appear".