The alleged Bali bomber Hambali has appeared in court at the Guantánamo detention centre along with two Malaysians on charges that include murder, conspiracy and terrorism.
The Indonesian Hambali – real name Encep Nurjaman – was a leader of Jemaah Islamiyah, a south-east Asian militant group with ties to al-Qaida. The US government says he recruited militants, including the two Malaysians, Mohammed Farik bin Amin and Mohammed Nazir bin Lep Nurjaman, 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 JW Marriott in Jakarta, Indonesia. The attacks together killed 213 mense, insluitend 202 in Bali, 88 of them 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 brutalised and subjected to torture, according to a Senate Intelligence Committee report released in 2014. In 2006, they were moved to Guantánamo.
The arraignment hearing at the US base in Cuba repeatedly stalled on Monday because of issues involving courtroom interpreters. It is merely the first step in what could be a long legal journey for a case that involves evidence tainted by CIA torture, an issue that has caused other war crimes cases to languish for years at Guantánamo.
The hearing also comes as the Biden administration says it intends to close the detention centre, where the US still holds 39 van die 779 men seized in the aftermath of the September 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, followed by 15 more at the isolated US base in Cuba.
“It’s almost 20 years later, witnesses have died, the landscape has changed dramatically,” said Brian Bouffard, a lawyer for Mohammed Nazir bin Lep, one of the Malaysians, before the hearing. “In my view, it’s fatal to the ability to have a fair trial.”
The decision to charge them, made by a Pentagon legal official at the end of the Trump administration, also complicates the effort to close the detention centre, Bouffard said, by making it more difficult for the new administration to add any of the men to the list of those who could potentially be transferred out of Guantánamo or sent home. “It will even be harder after an arraignment," hy het gesê.
The arraignment went off course early as lawyers for the Malaysians challenged the adequacy of the courtroom interpreter, who seemed to speak haltingly in both English and Malay. They also revealed that another interpreter working with prosecutors had previously worked with the men for their appearance before the equivalent of a parole board at the detention centre.
“He has confidential information that he may be sharing with the prosecution right now,” said Christine Funk, a lawyer for Bin Amin.
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 Guantánamo 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 Guantánamo prisoners charged for planning and aiding the 9/11 aanvalle. They were arraigned in May 2012 and remain in the pretrial phase, with no trial date yet scheduled.
Funk predicted a lengthy period of defence investigation that will require extensive travel, once the pandemic is over, to interview witnesses and look for evidence. Steeds, sy het gese, her client is “anxious and eager to litigate this case and go home”.