Al-Nashiri's Case: Simultaneously in Gitmo, Strasbourg, Poland, and Toledo

Benjamin G. Davis, Associate Professor of Law, University of Toldo College of Law

This week a Gitmo detainee – Mr. Al-Nashiri – has his military commission continuing with new motions being argued after all his prior  motions were argued and essentially rejected by the military judge (a review of each day is available at http://www.lawfareblog.com/2012/07/live-from-guantanamo-via-fort-meade-its-al-nashiri/) in this process with judicial forms but without judicial norms. This week also former federal district judge James Robertson, who presciently wrote in the Hamdan case on what was at stake in these military commissions, lamented the gutting of the Supreme Court Boumediene decision by the DC Circuit in its habeas decisions and the Supreme Court not granting cert for the appeals of detainees (http://www.scotusblog.com/2012/07/ex-judge-boumediene-is-being-gutted/).  This week a DoD report on drugs being used on detainees raised troubling issues about what was or was not done to detainees (http://www.huffingtonpost.com/2012/07/12/guantanamo-drug-probe_n_1669378.html) and about the veracity of the “presumptively valid per the DC Circuit” intelligence reports gathered from these detainees.  In a case brought by Mr. Al-Nashiri, it was reported today that the European Court of Human Rights in Strasbourg, France ordered Poland to hand over secret documents with regard to the “black sites” run in Poland in the CIA War on Terror program for high-value detainees and where Mr. Al-Nashiri spent six months held incognito (http://www.telegraph.co.uk/news/worldnews/al-qaeda/9407126/Court-demands-secret-files-on-US-black-jails.html).  In those documents it is reported that the approach to bury prisoners formed part of the discussion betweent he Poles and the CIA, leaving open the prospect that there are dead prisoners buried on the black site who died in this interrogation site.

It is reported that the United States through the Obama Administration is resisting the European Court of Human Rights probe as it has done with every foreign effort or domestic effort seeking to shed light on this dark passage of American history.  If it turns out that Romney is elected President this fall, he is on record to be willing to resort to enhanced interrogation techniques based on statements made during the Republican primaries.  So, Democrat or Republican Administration, one cannot expect much will to seek accountability from the Federal Executive, the Congress, or, for that matter, the United States Courts.

So to continue to raise consciousness on this, when Romney is here in Toledo like today and provided it is not too hot, I will be at their events singing songs and carrying signs such as: “Prosecute Bush, Torturer in Chief and Iraq War Liar’ and “Hey Romney, Renounce Torture! No more torturers in chief.”  I have been demonstrating on this since February 2004 and I encourage all ordinary citizens of the United States to continue to put pressure on our authorities to seek accountability for the crimes committed in our names.  Refluat Stercus!