NAVAL STATION GUANTANAMO BAY – Three prisoners at the Guantanamo Bay detention center had their first day in court Monday after being held by the U.S. for 18 years without charge in connection with the deadly 2002 Bali nightclub bombings and other plots in Southeast Asia.
Indonesian prisoner Encep Nurjaman, known as Hambali, and two Malaysians started their arraignment before a military commission in a nearly five-hour hearing at the U.S. base in Cuba, facing charges that include murder, conspiracy and terrorism.
Slowed by problems with the courtroom interpreters, the military commission was unable to finish the long-delayed arraignment and it was expected to resume Tuesday.
It is, at any rate, merely the first step in what will likely be a long legal journey. The war crimes tribunal for the three faces many of the same issues that have caused other Guantanamo cases to languish for years, including evidence tainted by CIA torture, as well as the challenges posed by the men's prolonged imprisonment without charge.
“It’s almost 20 years later, witnesses have died, the landscape has changed dramatically,” said Brian Bouffard, a lawyer for one of the two Malaysians, Mohammed Nazir bin Lep. “In my view, it’s fatal to the ability to have a fair trial.”
The arraignment comes as the Biden administration says it intends to close the detention center, where the U.S. still holds 39 of the 779 men seized in the aftermath of the Sept. 11, 2001, attacks and invasion of Afghanistan.
The three men charged in connection with the nightclub bombings were held in secret CIA confinement for three years, subjected to what the government euphemistically called “enhanced interrogation,” followed by 15 more at the isolated U.S. base in Cuba.
The decision to charge them, made by a Pentagon legal official at the end of the Trump administration, complicates the closure effort, Bouffard said, since the government would likely be less inclined to release men facing an active prosecution, even after so many years in custody.
“It will even be harder after an arraignment,” he said.
The arraignment went off course early, with attorneys for the Malaysians telling the judge that the men couldn't understand their interpreter, who seemed to speak haltingly in both English and Malay. They also revealed that another interpreter working with prosecutors had previously been assigned to them as they prepared for the parole-like review board at Guantanamo.
“He has confidential information that he may be sharing with the prosecution right now,” said Christine Funk, a lawyer for defendant Mohammed Farik bin Amin.
Bin lep's legal team also disclosed that it planned to introduce an affidavit in which the Indonesian interpreter is alleged to have been overheard saying “I don't know why the government has spent so much money on these terrorists; they should have been killed a long time ago.”
The judge, a Navy commander, said the interpreters met the commission requirements for the arraignment and allowed the hearing to go forward, though he said he would consider the issues raised by the defense at a later point in the case.
Nurjaman was a leader of Jemaah Islamiyah, a Southeast Asian militant group with ties to al-Qaida. The U.S. government says he recruited militants, including bin Lep and bin Amin, for jihadist operations.
Among the plots that al-Qaida and Jemaah Islamiyah carried out were the October 2002 suicide bombings of Paddy’s Pub and the Sari Club in Bali, Indonesia, and the August 2003 suicide bombing of the J.W. Marriott in Jakarta, Indonesia. The attacks together killed 213 people, including seven Americans, and injured 109 people, including six Americans. Dozens of victims were foreign tourists, mostly Australians.
Prosecutors allege bin Lep and bin Amin, served as intermediaries in the transfer of money used to fund the group's operations.
All three were captured in Thailand in 2003 and transferred to CIA “black sites,” where they were brutalized and subjected to torture, according to a Senate Intelligence Committee report released in 2014. In 2006, they were moved to Guantanamo.
It's unclear why it's taken so long to charge them before the military commission. Military prosecutors filed charges against the men in June 2017, but the Pentagon legal official who oversees Guantanamo cases rejected the charges for reasons that haven't been publicly disclosed.
The case has many elements that make it complex, including whether statements the men made to authorities can hold up in court because of the abuse they experienced in CIA custody, the fact that people have already been convicted, and in some cases executed, in Indonesia for the attack, and the long time it has taken to bring charges.
Some of these same issues have come up in the case against five Guantanamo prisoners charged for planning and aiding the Sept. 11 attacks. They were arraigned in May 2012 and remain in the pretrial phase, with no trial date yet scheduled.
Funk predicted a lengthy period of defense investigation that will require extensive travel, once the pandemic is over, to interview witnesses and look for any evidence or witnesses that might still be available. Still, she said, her client is “anxious and eager to litigate this case and go home.”