Pierce County District Court Judge Jack Nevin worked in military courts all over the world during his 33-year career as an Army Reserve attorney and judge.
None was quite like the court he visited last month as an independent observer at Guantanamo Bay, Cuba.
Start with the security, which Nevin called “extraordinary.”
Defendant Abd al Rahim al Nashiri, the man accused of orchestrating the deadly attack on the Navy destroyer USS Cole 11 years ago, was under restraints and heavy guard except while in court. Sound-proofing glass separated the court from observers so officers could screen classified information before it reached public ears.
Nevin attended Nashiri’s court appearance as a representative for the National Institute of Military Justice. That organization is paying close attention to the military commissions at Guantanamo Bay because they have an unclear future as a hybrid of military courts-martial and the federal justice system.
The commissions remain new legal territory even 10 years after the Bush administration opened a prison at Guantanamo for the detainees it called the “worst of the worst.” Since, President Barack Obama has set aside his campaign pledge to close the prison; instead, he has upheld many of Bush’s detention policies.
The debate about what to do with the roughly 170 detainees still at the prison continues to divide the country along political lines. Some view the island camp as second-tier justice; others call it necessary to protect national security.
Nevin attended Nashiri’s hearing with representatives from nonprofit groups from both ends of the political spectrum. He found himself somewhere in the middle.
“I am not a critic of or an apologist for the Bush administration,” Nevin said. “I am not a critic or an apologist for the Obama administration. These are just unprecedented times.”
Nevin, a retired Army Reserve brigadier general, left the two-day hearing with the impression that the system for prosecuting Guantanamo detainees could provide free and fair trials while protecting classified information. Still, he couldn’t say whether the system would hold up under federal court appeals.
Nevin lives in University Place with his wife, Cheryl French. Aside from sitting on the bench in Pierce County, Nevin is an adjunct law professor at Seattle University with an extensive background in foreign courts. He has worked on projects to rebuild the Iraqi justice system, served as presiding judge for a United Nations tribunal in Kosovo and advised the El Salvador government.
At Guantanamo Bay, Nevin slept under a large tent with other guests. Plywood walls divided their rooms. He took a “windshield tour” of inmate living quarters, including sites where detainees who no longer face charges await transfers to willing host nations.
Nashiri faces the death penalty if convicted of murdering the 17 service members who died on the USS Cole in October 2000. In U.S. custody for nine years, he’s one of the most prominent detainees at Guantanamo Bay. He’s also one of four al-Qaida members the CIA has admitted subjecting to waterboarding during interrogations.
It’s not clear when he’ll go to trial. Since the January hearing Nevin attended, Nashiri has sought to depose Yemen President Ali Abdullah Saleh on the theory that Saleh might have important information about the Cole attack.
Nevin said he has an open mind about how to prosecute detainees because the nature of war in the 21st century changed from combat against other nations to fighting against enemies who could be anywhere. That shift fits with the Bush administration’s rethinking of detention policies after the attacks on the World Trade Center and the Pentagon on Sept. 11, 2001.
Nevin paid close attention to Judge Army Col. James Pohl during Nashiri’s hearing, knowing that answers to questions about how to apply justice in these cases wouldn’t be found easily in military law or in civilian courts.
“We are trying this in a vacuum almost without precedent,” Nevin said.
Families of USS Cole victims attended Nashiri’s hearing and told reporters they’d be patient in waiting for justice. Their presence brought a human dimension to the sometimes-abstract arguments.
“These are bad guys,” Nevin said, referring to detainees like Nashiri. “There are Americans who would say, ‘Why should they receive a trial at all?’ But we are a nation of laws, and those laws set us apart from our enemies.”
Adam Ashton: 253-597-8646
adam.ashton@thenewstribune.com
blog.thenewstribune.com/military
