The US Justice Department yesterday announced that five Guantanamo detainees would finally be moved to New York to face a normal trial, while others, including alleged USS Cole bombing mastermind Abd al-Rahim al-Nashiri, would face not ordinary trials, but military commissions.
Reading between the lines of the officials statements and taking comment pieces into account, it seems that the reason for this is that prosecutors are confident of convicting the five to be sent to New York (who will very probably plead guilty, so there won’t be a trial), but not so sure they could convict al-Nashiri.
I was pretty surprised by this decision, and would simply like to highlight some evidence indicating al-Nashiri’s guilt that, in my opinion, is very strong and would very probably be admissible in a normal court. Primarily, this is the statement al-Nashiri made at his military commission hearing in spring 2007 (and presumably similar statements he would have made to FBI investigators in Guantanamo Bay).
It is clearly established that al-Nashiri was tortured in US custody, including the use of the waterboard (although something seems to have gone wrong, as it was quickly discontinued). Therefore, there is the theoretical possibility that the statements he made at the hearing should be considered statements made under duress, and therefore be inadmissible or have no weight attached to them.
However, at the hearing al-Nashiri alleged that he had been tortured and, under torture, had said things which were untrue (he had confessed to the Cole bombing and other attacks, which he denied at the hearing). This indicates an absence of duress at the hearing–if al-Nashiri made the admissions he made at the hearing under duress that continued from the torture, why did the duress not cause him to plead guilty, and why did he claim that some statements he previously made were untrue? In addition, after complaining about the torture and retracting some of his previous statements, he said he was not under duress at the hearing.
I’ll go through the transcript and pull out the passages where I think al-Nashiri makes key admissions.
The hearing was a fairly long one, after the summary of evidence was read, al-Nashiri had his personal statement read. It began:
The Detainee states that he was tortured into confession and once he made a confession his captors were happy and they stopped torturing him. Also, the Detainee states that he made up stories during the torture to get it to stop.
Al-Nashiri then denied visiting Bosnia (although he did visit Chechnya) and receiving training in explosives. However, he “states that he has visited battlefields and observed battles in progress because it was his intention to help people by gathering information and an understanding of what was occurring in Afghanistan.” First key admission: presence at battlefields in Afghanistan.
He denied involvement in the 1998 East African embassy bombings and interacting in Yemen with one of the bombers, Rashid al-Owhali, who he is alleged to have procured a false passport for (al-Owhali identified al-Nashiri as the operative who procured his false passport for the FBI and is now in prison in Colorado; al-Owhali’s partner in the bombing was al-Nashiri’s cousin).
He also denied being a member of al-Qaeda and involvement in the Cole bombing. However, “The Detainee also acknowledges that he knows the people involved in the USS Cole bombing personally because he had a business relationship with them in the fishing industry and did not know what they were planning to do.” Second key admission: he knows the Cole bombers.
In addition: “In response to item f [that al-Nashiri asked Jamal al-Badawi, one of the Cole bombers, to buy the boat later used in the Cole bombing], the Detainess agrees that the item listed in the evidence is true but the reason why he asked al-Badawi to buy him a boat was for his fishing business.” Third key admission: he bought the boat used in the bombings.
Then he denies discussing a purchase of explosives in a specific Yemeni town and funding the Cole operation. His name was found on some documents for items linked to the bombing by FBI investigators; he says an associate may have put them there without his knowledge.
He also “again acknowledges that he knows the people involved in the USS Cole bombing and the French Merchant Vessel Limburg incident personally.” Later, he admitted helping the Limburg bombers come to Yemen, but said he did not know they wanted to blow up another ship. This is the fourth key admission.
Asked about the Cole bombing, he replied: “I was in Afghanistan. When I knew that two people were going to Yemen to be involved in a fishing project. And, I took about five or ten thousand dollars from Osama bin Laden. He used to help all people.” Fifth key admission: before the bombing, he got money from bin Laden.
Later he was asked how many times he met bin Laden? “Many times… And if I needed money I would just ask him and he would give money to me.” He goes on to detail exactly how much he got from bin Laden on some occasions, adding that he distributed about half a million dollars bin Laden gave him.
Also: “It’s the truth that during the investigation I admitted to. I told them that I took some money then I have it to somebody to buy, to buy explosives. That’s, this, this thing news in general is true. Buy during the investigation I told them yes I took this money and to get involved in some bombings. But in reality I took them and I gave them to my friend and I gave them to my friend Rhibay.” Sixth key admission: he admits buying explosives before the Cole bombing (although he denies it was these explosives that were used in the bombing, he says they were used to dig wells).
Later: “I had a project in Dubai regarding a ship. A business project. But I took money from Osama bin Laden to do this project. And at the end Osama bin Laden asked me if I can use those things in military actions. But when I went to Dubai I ended the whole project. I sold the boat and I let the people go.” Seventh key admission: after the Cole bombing, al-Nashiri, he says, learned his friends and bin Laden had blown up a destroyer using a boat he had al-Badawi buy. He went back to bin Laden, got some more money, and bought another boat with it (this time in the UAE). However, when he realized bin Laden wanted to do something bad with the boat, he refused and closed the business. If one of my acquaintances blew up a destroyer using a small suicide boat, I would not accept money from him to buy another small boat. Most probably, I wouldn’t have anything to do with him.
Also: “One time Mukthar told me about a point which is, which is not listed here.” Eighth key admission: Mukhtar is KSM’s nickname; he’s admitted knowing KSM.
After his two business partners in the alleged fishing venture in Yemen died of natural causes before the Cole bombing, “I took the boat that was there and I took it to some brothers. One is called Hassan and one is called Nibras. After that I left and travelled. And those are the two people who exploded the Cole ship.” Ninth key admission: he gave the bombers the boat.
How does he know Khallad bin Attash, the other alleged mastermind of the Cole bombing? “I met him in Afghanistan. He the regular guy who was Jihadist. He was with Osama bin Laden.” Tenth key admission: he knows bin Attash.
Asked how he knew al-Owhali, he replied, “This person I only met in Afghanistan.” Eleventh key admission: he knows al-Owhali.
Al-Owhali says he knew al-Nashiri as Bilal, did al-Nashiri ever go by that name? “Yes. I had the name Bilal.”
So, regarding the embassy bombings, he denied being involved, although he obviously knew one of the bombers (his cousin) and admitted knowing al-Owhali. Further, he admitted using the name al-Owhali knew him under.
Regarding the Cole bombing, he again denied involvement, but admitted receiving money prior to the attack from bin Laden. He also admitted knowing the bombers, including the other leader bin Attash, buying some explosives, having one of the bombers buy the boat, and giving the boat to the bombers. Then he went back to bin Laden and got some more money.
In addition, he admits being present at battles, going to Chechnya and knowing KSM.
If I were on a jury and a defendant admitted to all this (remember, there is also other evidence indicating al-Nashiri’s guilt not discussed here), I would not believe his cock-and-bull story about being a fisherman and I couldn’t raise my hand fast enough to send him where he belongs–Florence.
Therefore, it’s pretty surprising the Justice Department does not want to go with this in New York. I understand that there might by a problem having al-Badawi testify against al-Nashiri in New York, although I don’t really see why the option of getting testimony by video link from Yemen cannot be explored.
I can’t help thinking that the DoJ thinks the five to be sent to New York will plead guilty, but that if a detainee isn’t going to plead guilty, then that’s why he gets the lower standard of the military commission.