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Unprecedented public view of a Gitmo hearing

Janet Hamlin / AP

In this sketch by courtroom artist Janet Hamlin, reviewed by the U.S. military, Abd al-Rahim al-Nashiri is seen during his military commissions arraignment at the Guantanamo Bay detention center in Guantanamo, Cuba, Wed. Nov. 9.

By Courtney Kube, NBC News Producer

Defense officials for the first time on Wednesday made it easier for reporters and the public to view court hearings at Guantanamo Bay, Cuba, by airing the proceedings remotely via teleconference at Fort Meade in Maryland.

Journalists who traveled to the army base were able to see the exact same closed-circuit video of Abd al-Rahim al-Nashiri’s arraignment as reporters who made the trip down to Guantanamo Bay. The suspected al-Qaida leader faces charges of orchestrating the deadly attack on the USS Cole in Yemen, in which 17 crew members were killed and another 37 wounded.

The Fort Meade base theater – set to feature A Dolphin Tale later in the day –  was transformed into a media-filing center with a projector showing the proceeding on a large move screen. In the audience were about 60 people, including 20 journalists, members of the military and legal communities, employees from non-governmental organizations, and even some private citizens, according to a Pentagon spokesperson.

Fort Meade was one of two viewing areas inside the United States on Wednesday. The second, at Norfolk Naval Air Station in Virginia, was open for victims of the Cole bombing and their relatives – no media allowed.

Today’s debut of the teleconference system at Fort Meade suffered from a few minor glitches: the screen froze several times throughout the four-hour court appearance and the audio dropped out a couple of times, but the technical issues didn’t pose any major disruptions to the Maryland viewers.

The judge made clear that he considered the viewing theater at Fort Meade to be an extension of the courtroom down in Cuba. In reality though, journalists at Fort Meade were allowed to type away on computers, and observers could laugh at the judge’s repeated sarcastic quips during the arraignment. Neither computers nor loud outbursts were permitted in the actual courtroom.

For the 30 journalists who traveled to Cuba to view the proceedings at Gitmo, the Pentagon-sponsored trip required a four-day commitment, including two full days of travel.

The hearing  

The judge called the court to order at 9:18 a.m. After members of the government’s prosecution team presented their credentials to the court, the judge turned to the Abd al-Rahim al-Nashiri and his attorneys.

 Just as the judge addressed al-Nashiri for the first time, the video-teleconference feed froze, leading to a short groan from the media and public gathered in the Fort Meade theater. After a few seconds though, al-Nashiri appeared on screen, seated next to his four-person legal team and one translator.

Today marked the first time the Saudi has been seen in any public setting since he was captured in 2002.  Wearing a white prison outfit that looked like medical scrubs, al-Nashiri sat slumped down in his chair with his head resting on his hand for much of the proceedings. With his hair cut short, he appeared remarkably more fit and muscular than the photo commonly used in the media.

His arraignment marks the first capital case to be tried at Guantanamo Bay since President Obama took office and since the new Military Commissions Act became law in 2009. He faces the death penalty if found guilty of planning the Cole attack.

The judge first turned to al-Nashiri to ask him whether he speaks English.

“I do not speak English,” al-Nashiri said, sparking chuckles back in the viewing center at Fort Meade.

Straight-faced, the judge then asked whether al-Nashiri needs a translator. 

“Of course, yes,” al-Nashiri said with a slight smile,

Al-Nashiri then said he speaks Arabic and identified the man sitting next to him as his translator.

Al -Nashiri spoke in Arabic for the rest of the proceedings, responding to a series of questions from the judge about whether he understood his various rights, including the right to a translator and counsel.

When asked whether he wants any other counsel, al-Nashiri spoke through a translator, saying, “at this moment these lawyers are doing the right job,” but added that in the future they will discuss this matter again.

Al-Nashiri’s attorney also chimed in, saying that they “will address that matter at a later date.”

When the judge asked who would be his lead attorney in this case, al-Nashiri said, “Mister Rick.”  The judge was silent for a moment, before he said, “Mr. Richard Kammen?”

“Yes,” al-Nashiri said, adding, “I do not pronounce the names perfectly.”

The judge joked, “Neither do I.”

That was essentially the end of al-Nashiri’s participation in the arraignment, which was primarily intended to deal with administrative issues, and included the formal reading of the capital charges against him and the opportunity for the attorneys to present several motions to the court.

Al-Nashiri agreed to waive his right to conflict-free counsel (one of his attorneys also represented another Guantanamo detainee), and then his attorney questioned the judge for several minutes to determine whether he would challenge the judge’s ability to preside over the trial.

Kammen spent most of the time asking about the judge’s thoughts on the death penalty and his feelings on torture. A report by the CIA Inspector General revealed that al-Nashiri had been subjected to "enhanced interrogation techniques," including two instances of waterboarding. He also was threatened with a gun and a power drill because interrogators believed he was withholding information about possible attacks against the U.S.

The judge repeatedly refused to answer questions about his personal feelings, saying that he would follow the law.

Kammen repeatedly stated that al-Nashiri was tortured. When he asked the judge whether he believes that the U.S. forfeited their moral authority to put al-Nashiri to death because he was tortured, the judge said simply: “The rules are the rules. I’m a simple guy.

I just follow the rules.”

The motions & plea 

 hroughout the next three hours, the attorneys hashed out several issues.

 The court ruled that al-Nashiri will not be subject to physical restraints inside the courtroom, unless his actions deemed restraints necessary.

 The judge told al-Nashiri that he has the right to appear in civilian clothes, and advised him that when he gets to the member’s (jury) portion of trial, he may want to re-consider wearing the prison uniform because it could have a negative perception on the jurors.

When asked for his plea, al-Nashiri requested to reserve pleas and motions.

When defense counsel asked whether al-Nashiri would be released if he is acquitted, the judge said there was no way of predicting what would happen, joking that two years ago they didn’t think he would ever be arraigned at Guantanamo, because it was supposed to be closed by now.

President Barack Obama took office promising to close the detention center at Guantanamo Bay, but was thwarted by Congress, which has refused to authorize moving the prisoners elsewhere, and by the absence of an alternative location or legal framework to hold accused terrorists on U.S. soil.

Finally, the judge said that the present intent is not to release him, even if he’s acquitted, and that he would likely go right back to the cell he came from.

The next hour was the most contentious, as the defense attorneys argued that the leadership at Guantanamo not only seized al-Nashiri’s box of legal documents, but that they have also been reading and seizing his mail.

In the end, the defense asked for the trial date to be set for one year from today – Nov. 9, 2012 – with the acknowledgment that the date could slip later than that.

Reaction

After the arraignment, al-Nashiri’s attorneys criticized the military commissions process, with Kammen calling it, a “hopelessly unfair system.”

In the end, he said that the arraignment went as smoothly as it could have gone for them, but that there “are potential storm clouds over the horizon.”

He said that the beginning of the actual trial “will be far in excess of a year,” and that they are sure he would still be held in detention even if he is acquitted.

Kammen said that he can’t imagine that in today’s or next year’s political environment that al-Nashiri would be released.

Several family members and victims of the USS Cole bombing present at the arraignment spoke to the media next.

John Clodfeldter’s son Kenneth was killed in the attack.

He described al-Nashiri as a pitiful looking person and characterized his demeanor as cocky. Clodfelter complained that in today’s proceedings the court seemed more concerned with how al-Nashiri was being treated rather than how he treated those 17 sailors who died.

Clodfelter added that he hopes al-Nashiri gets the death penalty, “or worse.” He choked up as he talked about his son Kenneth, who was 21 when he was killed.

 “He loved the Navy a great deal,” he said.