This report is the first of regular updates from and about the court proceedings at Guantánamo Bay, which I have been covering since 2002, first for the Miami Herald and then the New York Times. I see this new space at Just Security as public service journalism for those who are deeply interested in the military commissions that the United States created after the 9/11 attacks. Don’t look here for legal opinion or national security commentary. Just the facts.
The editors and guest authors at Just Security will be explaining more soon.
But for now, a short item about the USS Cole bombing case, in which Saudi citizen Abd al-Rahim al-Nashiri is accused of organizing the Oct. 12, 2000 attack on a U.S. Navy destroyer in the port of Aden in Yemen. It is the longest running capital case at Guantánamo.
Col. Matthew Fitzgerald, the Army judge in the USS Cole case, has issued his docketing order, which serves as an agenda, for his Sept. 21 hearing at Guantánamo. Absent a hurricane or other interference, that should be the last hearing before the start of the first-ever capital trial at the court. You can see the order here.
The Sept. 21 hearing date comes with the usual caveats because storms, health crises, outages, and legal team boycotts have forced cancellation of hearings since the defendant, al-Nashiri, was first brought before the court 15 years–and 6,000 military commissions-filings–ago.
Some context: Seventeen U.S. sailors were killed in al Qaeda’s suicide bombing of the warship in October 2000. Nashiri has been in U.S. custody since October 2002. He was first brought before a military judge at Guantánamo on Nov. 9, 2011 because, among other things, he was held for the first four years by the CIA, which interrogated him but never intended that he be prosecuted. U.S. courts have been grappling with the implications of his torture by the CIA since then.
Jury selection is currently scheduled to start on Oct. 19 with the military bringing the first 36 U.S. military officers to the base for voir dire, the process by which the panel is selected. No capital panel has ever been chosen at the Guantánamo court, and we should learn more about the mechanics of it later. But this could become a convoluted process, requiring multiple airlifts of would-be panel members. Guantánamo is essentially a commuter court, with nearly everyone who takes part in the proceedings coming to the base in southeast Cuba by air shuttle from Washington, D.C. (Except the prisoners and their guards.) So it may require a series of shuttles to bring down more potential, anonymous panel members from U.S. military bases around the world in October and November.
But, first, the Docketing Order lays out what the judge wants to cover across two weeks starting on Sept. 21, the last hearing before panel selection, including testimony from a proposed expert witness at the trial and a discussion of jury selection, hopefully in open court.
Medical testing of the defendant is also on the agenda.
Some background: Nashiri was waterboarded by psychologists working for the CIA at a black site in Thailand in 2002. There, he was subjected to many “enhanced interrogation techniques,” including being held nude in solitary confinement and, for a time, in a pitch-black, cramped confinement box. A model brought to court a few years ago looked like a dorm room fridge big enough for a human to crawl inside and sit, hunched over. The consequences of that torture have been a major theme of the pretrial hearings, both legally and medically for the defendant. He has been diagnosed with post-traumatic stress disorder and other conditions, including nausea he experiences in the van ride to court, which his lawyers blame on retraumatization from his CIA renditions. Prosecutors prefer to call it car sickness.
The judge recently denied a motion from Nashiri’s lawyer to have the defendant spend his trial nights at a large holding cell near the court. So now, he will be traveling each trial day between the prison and court, a 15- to 20-minute drive in a windowless van through the military base, passing a McDonalds along the way.
One interesting aspect of the Docketing Order is the judge has agreed to use Courtroom 3 for next week’s hearing. It’s Guantánamo’s smaller national security court. It doesn’t appear to have a jury box large enough for a capital panel of a dozen officers plus four to six alternates. But it is big enough for a hearing with the judge, lawyers, and the one defendant. (Courtroom 3 has three defense tables; the main courtroom has six defense tables and a much larger jury box.) That may be because the military judge overseeing the 9/11 case has reserved the main courtroom for a one-week hearing starting Sept. 28.
Two simultaneous military commission sessions in the death-penalty cases should stretch the resources of Guantánamo. Also, as they say in the military, they could introduce multiple potential points of failure.
For that week the base will need to lodge two judges, their separate staff members, two prosecution teams, and five or six different defense teams. Also, the shuttles from Washington will bring down twice as many court reporters, contract linguists, and legal observers. With their arrival, staff will need to reopen office spaces, borrow government vehicles, and check in to a range of lodging accommodations, from hotel-style guest quarters to temporary trailers — all a big lift for the commuter court.
What we don’t know is how exactly the two hearings will run simultaneously. As of last month, the separate 9/11 and Cole cases each had the same lead prosecutor: Clayton Trivett Jr., a Navy reserve commander.
Chief Prosecutor Rear Adm. Aaron Rugh assigned Trivett to lead the Cole case earlier this year. Navy Reserve Capt. Timothy Stimson, who has led the Cole prosecution team since 2023, is returning to his civilian government law job. Trivett made his first appearance before Judge Fitzgerald last month. He described himself then as a special counsel on assignment from the Justice Department, which pays him as the 9/11 case prosecutor. Yet to be seen is whether the Pentagon will be mobilizing Trivett as Commander Trivett for the Nashiri trial, which should run well into 2027. If the Pentagon finds him the billet, he will be prosecuting as a Navy JAG, opposite a civilian-led defense team. The job of prosecutor will be the same either way, but he would be wearing a uniform of the U.S. military – just like members of the jury.
