What Happens When Suspected Terrorists Refuse to Go to Their Trials?

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Lawyers at Guantanamo aren't exactly sure what to do after a number of suspected terrorists have decided not to show up for their own trials. The latest is Abd al-Rahim al-Nashiri (pictured above), a suspected organizer of the 2000 attack on the USS Cole who decided to boycott his pretrial hearings in order to protest the use of belly chains which he would have been forced to wear. Just last week, all five of the alleged 9/11 plotters decided to stay in their cells as their lawyers discussed the terms of their clients' inevitably death penalty tribunal. Just a couple of days before that, three of those five skipped another pretrial hearing that looked at whether evidence of torture and classified matters would be discussed in their public trial. They just didn't want to go.

It's a curious problem for federal prosecutors. Are these terrorism suspects allowed to just not show up? And if they don't, how should the trial proceed? Should everybody just pretend that they're there? That feels kind of strange, doesn't it?

We don't want to oversimplify the issue, but it's basically up to the judge. In the case of the 9/11 Five, the judge judge Army Col. James Pohl gave the suspects permission not to attend their pretrial hearings. Faced with a mix of requests from all sides -- from those wanting the Pentagon to broadcast the hearing live to the prisons who want to court room darkened on Fridays on account of the Sabbath -- Pohl seems to have taken the route of least resistance. He even set up a waiver system that allowed the prisoners to sign a three-page form the morning before a trial if they wished not to attend. 

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Judge Pohl was not so understanding in the case of al-Nashiri of the USS Cole trial. Al-Nashiri, who's been a prisoner at Guantanamo since September 2006 and says he was brutalized in U.S. custody, maintains that the chains he would have to wear to trial could traumatize him due to past treatment. Judge Pohl, for whatever reason, doesn't buy this excuse. "Tomorrow, weather permitting, your client is coming," he told al-Nashiri's lawyers on Tuesday, referencing Tropical Storm Sandy which should hit Cuba sometime this week. Given Pohl's policy with the 9/11 Five, though, we're lead to believe that even if al-Nashiri protests again, the trial will move forward without him.

Inevitably, that seems like a solution to this absent suspect problem. If they don't attend, the trial will go on. And as al-Nashiri's attorney Richard Kammen puts it, it wouldn't make a difference if they did show up. "If he is acquitted he does life without parole in Guantanamo. If he's convicted he gets life without parole or death in Guantanamo," Kammen told the Associated Press. "It's very easy to see somebody saying 'Why do I want to participate in this? I've got no real stake in the outcome.'"

This article is from the archive of our partner The Wire.