Since my e-book, the Nashiri case plods ahead, as it can be expected to do for years. Some of the developments in this case and the companion prosecution of the five (now four) 9/11 defendants, featuring the notorious Khalid Sheikh Mohammad, have been spectacular, prompting predictions ranging from abandonment of the military commissions altogether, to dismissal of Nashiri’s case, or to continuing the seemingly endless slog through trials and the inevitable appeals, leading to possible retrials. I already have provided a description of some of these developments in my e-book. On this page, from time-to-time I will add posts to update the book.

I invite readers to comment here on the case, the new developments, any other aspect of the military tribunal process, or on any related topic.

Blog post updates appear at right. Click on any one to read and respond.

Or, please feel free to post a comment using the form below.


  1. Charles Church

    Thanks for writing, Bob.
    The Government did not take an appeal from Judge Pohl’s order requiring production of a broad array of information on the CIA’s interrogation and torture of Nashiri. (My theory is that the higher court—the Court of Military Commission Review—probably would have affirmed, lending even more authority to the order). Rather, it moved for reconsideration, which Pohl granted. After oral argument in which Rick Kammen, chief counsel for Nashiri, spoke of how brave Pohl was to issue the original order while expressing fear for his job, Pohl did modify that order. He allowed redaction of certain information relating to the Enhanced Interrogation Techniques employed by the CIA; reminded the Government what it evidently had failed to grasp—that a war court evidence rule allowing summaries and substitution of classified information would continue to control; and stated that nothing in his first order should be deemed to authorize non-compliance with the Intelligence Identities Protection Act. (That statute makes criminal the intentional disclosure of information identifying a covert agent to someone not authorized to receive such. Whether the interrogators, doctors, etc. who dealt with Nashiri at the various CIA black sites qualify as “covert agents” was not decided, but their identities have been kept secret by the agency).
    From following the war tribunal proceedings for Nashiri, my impression is that, rather than simply refusing to comply (which had been expected by more than a few), the CIA is providing summaries of its secret materials. No doubt, then, strenuous litigation will continue over whether the summaries fairly represent what has been kept secret. Presumably, this will keep the new judge busy, comparing the original documents to the summaries.
    As to Pohl’s replacement by Judge Spath, one difference already is clear. Spath moves more quickly than Pohl. Further, Spath has dismissed one of the three central events from the case: the successful attack on the French super-tanker M/V Limburg, for lack of facts provided by the Government to justify its inclusion. This surpassingly strange development—the alleged crime took place twelve years ago, plenty of time to investigate thoroughly—may seemingly be overcome if facts are proffered by the Government.
    But Spath has yet to deal with claims that could terminate altogether the war court case against Nashiri. Both the lethal attack on the USS Cole and the attempted strike on the USS Sullivan took place in 2000, well before the 9/11 attack and passage of the Authorization for the Use of Military Force. Did a state of war exist in 2000 and, if not, how could war crimes be committed against our nation? If the case is dismissed on account of the answers to such questions, those who have claimed from the beginning that this case (and others) should have been prosecuted in Article III civilian federal courts will be vindicated.
    What would happen in such event to Nashiri? Many have doubted that, even if exonerated by the military tribunal, he would be released, so quite possibly his detention will continue. Could he then be prosecuted in a civilian federal court? The “double jeopardy” clause in the U.S. Constitution never has been held to apply to prisoners such as Nashiri. Still, there may be statute of limitations issues to resolve, and whether the military commission prosecution tolled the running of time for the new charges.

  2. Bob Goodsell

    Thank you for the great reporting on Guantánamo and the proceedings against Abd al Rahim al Nashiri in your e-book My Week at Guantánamo’s War Court. I did find particularly interesting Judge Pohl’s ruling in April requiring the CIA to provide details about its treatment of al-Nashiri, including the identity of personnel who worked at the so-called “black sites” where he was tortured. Do you know whether the CIA has provided that information to al-Nashiri’s defense attorneys? I had heard that the CIA was likely to appeal Judge Pohl’s ruling. Has it done so? If so, how does the appeal process work in the context of these military proceedings and what is the likely timeframe?

    Since Pohl’s replacement by Colonel Spath, have there been any proceedings upon which one can draw preliminary conclusions as to Colonel Staph’s approach?

    Again, great and important work!


Leave a Reply

Your email address will not be published. Required fields are marked *