Motions Hearing Preview in United States v. Al-Nashiri: The Shackles Question

One motion to keep an eye on during the upcoming commission session in United States v. Al-Nashiri: the defense’s request for the Commission to order Guantanamo officials to permit Al-Nashiri to meet with his attorneys without being shackled “in any manner.” That request may not seem, in and of itself, especially important. But it also raises the possibility of litigation about whether the public can hear the defendant testify about his past mistreatment by the government--even though many of the facts of that mistreatment are thoroughly familiar to the public. This issue has come up before.  And Al-Nashiri’s supporting arguments this time are straightforward.  He was subjected to the CIA’s “Rendition, Detention, and Interrogation” program for four years, throughout which he alleges that he was tortured and abused while shackled.  According to his attorneys, the continued use of shackles would revive the trauma inflicted by his CIA captors.  Reviving that trauma, they argue, would also violate Common Article 3 of the Geneva Conventions, as well as the Detainee Treatment and Military Commissions Acts.  Trauma aside, the shackles are in any event unnecessary: Al-Nashiri has appeared at a prior court proceeding, met at least once with his defense lawyers and translators, and met with the International Committee of the Red Cross –each time without wearing shackles or other restraints, and always behaving appropriately.  Lastly, the defense argues, shackles will hamper its trial preparations.  These call for a more interactive, “psychodramatic” approach to attorney-client communications, in which both the defense lawyers and Al-Nashiri must be able to move about freely, in discussing the latter’s abuse by the CIA.  If that much sounds like a tempest in a teapot, that’s because it probably is. We do not know the prosecution’s exact views, as its response papers are still undergoing security review and have not been released. The major consequence of this motion has to do the possibility of Al-Nashiri’s testimony, whether it can take place in public session, and what it might reveal.  Al-Nashiri’s lawyers have asked to supplement their unclassified factual account with “information from the accused about his treatment while in CIA custody as well as . . . descriptions of the surrounding area and the room where legal visits take place.”  That has raised the possibility that the proceedings will be closed while Al-Nashiri testifies about misconduct by American intelligence personnel--the factual predicate for his claim that the shackles, if used, would inflame his psychological injuries. Al-Nashiri’s testimony—and the possibility of its either requiring a closed session or presenting a public window into the CIA program—is the real issue here. The CIA publicly has admitted to waterboarding Al-Nashiri. And his motion quotes from an unclassified report by the CIA’s Office of the Inspector General, which describes in detail the use of other “Specific Unauthorized or Undocumented Techniques” against him, like the threatening uses of a handgun and a power drill. You might be wondering: If all of that ugly stuff is known to the world already, then why is it necessary to close the courtroom, so as to guard against improper disclosure? That is what the New York Times, the Miami Herald, and other news outlets have asked, in several protests lodged with the commission last week. And that is what you should expect to hear argument about during Wednesday’s session. Anticipating as much, the government has asked for a separate hearing “to identify and minimize the amount of closure of proceedings compelled” by Al-Nashiri’s shackles motion.  It also has sought more information about Al-Nashiri’s mental state--and thus possibly signaled its disagreement with the defense lawyers’ assessment of their client’s dangerousness, or their claims regarding his residual trauma. Again, we don’t know precisely what the government’s position is, as its papers have not yet been released. We will presumably learn a great deal more tomorrow.