Defense Lawyer Comments on Ramzi bin al-Shibh and Rahim al-Nashiri

ACLU just had a conference call on today’s Gitmo announcement with, among others, Razmi bin al-Shibh’s civilian defense attorney, Tom Durkin, and Rahim al-Nashiri’s defense attorney, Nancy Hollander. Both had important details about their clients’ defense.

I asked Durkin about the status of al-Shibh’s competency hearings. Since the government has been trying to refuse defense attorneys access to al-Shibh’s medical records in the context of his competency to stand trial, I wondered if the defense team would continue to push for competency hearing as the trial moves to SDNY. Durkin refused to say what the team would do, but noted that since the military judge had raised the issue of a competency hearing, it is public record that it is an issue.

So expect al-Shibh’s defense team, at least, to continue to push for medical records in the scope of a competency question.

Hollander, who is defending al-Nashiri, noted they, too, have been pushing for their client’s medical records.

She also stated that they are going to contest the venue of the trial. Eric Holder had said a military commission for al-Nashiri is appropriate, given that the Cole bombing occurred in another country and its victims were all military. But Hollander pointed out that the Cole bombing was first investigated as a criminal case, so the only reason (she speculated) why the government would be trying him in a military commission is because they don’t have the evidence to convict him in a civilian court.

5 replies
  1. earlofhuntingdon says:

    Glenn Greenwald agrees with that conclusion.

    So what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court. Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials….Others for whom conviction is less certain will be accorded lesser due process: put in military commissions, to which most leading Democrats vehemently objected when created under Bush. Presumably, others still…will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.

    A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials.

  2. skdadl says:


    But I’m quite confident on the basis of the evidence that we will be able to present, some of which I said has not been even publicly discussed before that we will be successful in our attempts to convict those men.

    I know this is naive and I am NAL, but I was taught that, while it is definitely the duty of defence counsel to defend, it is not the duty of prosecutors/Crowns to convict — it is their duty to seek the truth.

    Holder isn’t making the faintest pretence of being interested in the truth. As Mary said on the last thread, Isikoff’s question was short of the mark. It’s not just defence counsel who need to know what happened to the “detainees” — many other directly affected individuals need to know, and then the American people need to know, and then the whole rest of the world needs to know.

    Holder is risking nothing if it isn’t a predetermined notch on his belt.

    • earlofhuntingdon says:

      I think you raise a difference that may exist between prosecutors in the US and those in Canada and the UK. In practice, prosecutors are measured based on their conviction rate (among other things). Backing down or dropping a case because it would do a manifest injustice, I expect is quite rare, much more so here than north of the border or in the motherland. Comments from experienced defense or prosecution counsel in the ranks would be helpful.

    • bobschacht says:

      The clear implication to me is that these are clearly *political* trials. Obama cannot afford any of the “top value” defendents to walk free. If he can get convictions on the top guys, in the first cases, what will happen with the Gitmo defendents who are not household names will matter less.

      But what I think will be interesting is that these will be highly publicized trials, which will focus public attention not just on these people, but on their torture and imprisonment. And there will be some surprises. So I think this is all to the good.

      Bob in AZ

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