Did Guantanamo Court Rig the Jury to Deliver Death Sentence?

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On Thursday, defense lawyers alleged that the Pentagon official overseeing the Guantanamo tribunal had tried to rig the jury selection process in order to boost the chances of obtaining a death sentence. The case involves a prisoner accused of directing a deadly attack on a U.S. warship.

Defense lawyers asked the judge to drop charges against Saudi defendant Abd al Rahim al Nashiri, accused of backing a suicide attack on the USS Cole off the coast of Yemen in 2000. Nashiri is also alleged to be an al Qaeda chieftain who chose and supplied the suicide bombers of the attack that killed 17 sailors and wounded many. Army Colonel James Pohl, the tribunal judge, did not rule on the request before the pretrial hearing ended.

However, the judge suggested that if there has been an attempt to exert improper influence, rather than dismissing the charges, the remedy would be to follow the regular U.S. court-martial procedures for jury selection. The defense complaints mentioned that retired Vice Admiral Bruce MacDonald, the Pentagon appointee overseeing the war crimes tribunals decides which cases should be referred to trial and whether defendants will face the death penalty. He also chooses the military officers for the jury pool.

  

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Defense lawyers of Nashiri alleged that while referring Nashiri’s case for trial on capital charges, the Pentagon appointee had included specific instructions on how the judge was to carry out jury selection – something that defense lawyers maintain is unprecedented bureaucratic interference in matters that are usually decided by the trial judge. MacDonald also limited the number of jurors to 12 and also limited the number of challenges the lawyers could use to dismiss jury candidates.

Conventionally, U.S. military courts empanel 14 or 15 jurors to maintain the quorum for a death sentence which requires an unanimous majority of at least 12 jurors. MacDonald’s capping of the number of active jurors on the panel to only 12 was surprising and against convention. Lieutenant Commander Stephen Reyes, one of Nashiri’s lawyers said “That is a panel that numerically favors a death sentence.”

The defense lawyers also alleged that MacDonald had been improperly appointed – that he had significant authority but no boss – and such an appointment should have received the approval of the Senate. The defense also asked that the prosecution be ordered to turn over evidence related to Nashiri’s arrest in Dubai and his four-year detention in secret CIA prisons before his transfer to Guantanamo.

Saundra Flanagan, whose son Petty Officer 1^st Class Kevin Rux was killed in the attack on USS Cole, called Nashiri and his co-conspirators “damn dastardly, cruel and mean.” She opined that while it might take a little bit longer to find justice for those killed and hurt in the attack on the U.S. warship, “we’ll be there waiting and watching and listening and praying for the best outcome.” Relatives and sailors are infuriated over the long delay in bringing Nashiri to trial.