Victim of brutal CIA torture wants trial moved to federal court

Abd al-Rahim al-Nashiri has been held in U.S. custody without trial or habeas review for 15 years. In late 2002, he was seized by local authorities in Dubai and turned over to the CIA. Al-Nashiri was held incommunicado until 2006 at the secret "black sites" and subjected to the most extreme forms of torture and abuse the United States has ever utilized.

Al-Nashiri was waterboarded, a rag placed over his forehead and eyes, and water poured into his nose and mouth until he began to choke and aspirate. The rag was lowered, suffocating him with the water still in his throat, sinuses and lungs. After he was allowed to take 3-4 breaths, the process was repeated. Waterboarding has long been considered torture.

Agents instilled in Al-Nashiri "learned helplessness" to render him passive and dependent. To induce sleep deprivation, he was shackled to a bar on the ceiling and forced to stand with his arms above his head.

A broomstick was placed behind Al-Nashiri's knees as he knelt and his body was forced backwards, pulling his knee joints apart. Agents also cinched his elbows behind his back and hoisted him up to the ceiling, causing a physician's assistant to fear they had dislocated his shoulders.

Al-Nashiri was placed in a coffin between interrogations. At other times, he was locked into the "small box" the size of an office safe.

During interrogations, agents used a rolled towel placed around Al-Nashiri's neck to swing him into a plywood wall, so the towel became an object of fear.

While hooded, naked and shackled to the ceiling, agents racked a handgun near Al-Nashiri's head, then substituted a revved-up power drill.

Al-Nashiri was subjected to "rectal feeding." A mixture of pureed hummus, pasta and sauce, nuts and raisins was forced into his rectum.

He was also forcibly sodomized and a stiff brush was raked across his "ass and balls and then his mouth."

Dr. Sondra Crosby, appointed by the Department of Defense, said Al-Nashiri, who was diagnosed with post-traumatic stress disorder and major depressive disorder, "presents as one of the most severely traumatized individuals [she] had ever seen," and is "most likely irreversibly damaged by torture."

Charged in Military Commission

In 2006, Al-Nashiri was transferred to Guantanamo, and in 2008, was ordered to stand trial before a military commission for his alleged involvement in the plots to bomb the USS Cole in 2000 and a French oil tanker in 2002, both in Yemen. He is facing the death penalty.

Al-Nashiri was not apprehended on the battlefield. Yet under the Military Commissions Act of 2009 (MCA), 123 Stat. 2190, military commissions are only competent to try crimes of war. The crimes must have been "committed in the context of and associated with hostilities." 10 U.S.C 950p(c). "Hostilities" is defined as a "conflict subject to the laws of war." 10 U.S.C. 948a(9).

All offenses alleged against Al-Nashiri occurred while President Clinton determined "America is not at war."

The U.S. did not consider Yemen a theater of hostilities until 2003, when President George W. Bush first extended the Authorization for the Use of Military Force to Yemen. That was nearly a year after Al-Nashiri was in custody.

Nevertheless, a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit denied Al-Nashiri's petition for mandamus to dissolve the military commission convened to try him. The majority ruled, over dissent, that the federal district court properly abstained from Al-Nashiri's case.

In his certiorari petition to the Supreme Court, Al-Nashiri asked the court to reaffirm that in the face of "a substantial argument that the military commission lacks authority to try him" (Hamdan v. Rumsfeld, 548 U.S. 557, 589 n. 20 (2006)), the judiciary cannot abdicate its Article III duty to prevent capital trials from being unlawfully diverted from the federal courts.

Abstention is Improper in This Case

Circuit Judges Thomas Griffith and David Sentelle concluded that abstention was compelled because the MCA provides for post-conviction appellate review in the D.C. Circuit. But the record indicates it is unlikely Al-Nashiri's case would be given post-conviction review in the federal court until at least 2024.

The two judges cited Schlesinger v. Councilman, 420 U.S. 738, 754-55 (1975), which held that district courts should not intervene in pending court-martial proceedings when the petitioner is "threatened with no injury other than that incidental to every criminal proceeding brought lawfully and in good faith."

Circuit Judge David Tatel wrote in dissent that the Councilman court "left open the possibility that cases might arise in which extraordinary circumstances would outweigh the equity and comity principles underlying abstention." Tatel added, "Here, it appears that extraordinary and unusual circumstances may well outweigh whatever equity and inter-branch comity principles might otherwise justify Councilman abstention."

Tatel cited Al-Nashiri's allegations of "years of brutal detention and interrogation tactics that left him in a compromised physical and psychological state and the harms he has already suffered," adding they "will be exacerbated -- perhaps permanently -- by the government's prosecution of him in a military commission." If those allegations have merit, Tatel noted, "the harms he will suffer are truly extraordinary and are a far cry from the ordinary burdens -- even serious ones -- that individuals endure in the course of defending against criminal prosecutions."

Indeed, being moved from meetings with counsel to court "triggers traumatic stress and causes [Al-Nashiri] intense anxiety, dissociation, and painful flashbacks to his experience of torture," Dr. Crosby observed. If forced to go through a military trial, she fears he "will eventually decompensate" with "permanently disabling effect[s] on his personality and his capacity to cooperate meaningfully with his attorneys."

"If [Al-Nashiri's alleged harms] do not qualify as [extraordinary], it would be hard to imagine any that would," Tatel wrote. "By the time Al-Nashiri has an opportunity for meaningful judicial review, the extraordinary injuries may well have occurred." He concluded that abstention would be unwarranted.

The government has until July 31 to respond to Al-Nashiri's cert petition. The Supreme Court should review his case and find that "extraordinary circumstances" due to the torture he endured require disbanding the military commission.