NAVAL STATION GUANTANAMO BAY, Cuba — Three prisoners at the Guantanamo Bay detention center are expected to get their first day in court after being held for 18 years 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 are to be arraigned Monday before a military commission on charges that include murder, conspiracy and terrorism. It is merely the first step in what could be a long legal journey for a case that involves evidence tainted by CIA torture, the same issue that is largely responsible for causing other war crimes cases to languish for years at Guantanamo.
The hearing also 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, followed by 15 more at the isolated U.S. base in Cuba.
The decision to charge them was made by a Pentagon legal official at the end of the Trump administration, complicating the effort to close the detention center, said Brian Bouffard, a lawyer for Mohammed Nazir bin Lep, one of the Malaysian men.
That made it more difficult for the new administration to add any to the list of those who could potentially be transferred out of Guantanamo or even sent home. “It will even be harder after an arraignment,” Bouffard said.
Whether the arraignment would actually take place was not certain. Lawyers have sought to put the case on hold for a number of reasons, including what they have said is insufficient access to interpreters and other resources to mount a defense. The accused were still expected to show up for the hearing.
The Navy judge presiding over the case in the commission, a hybrid of military and civilian law, is expected to consider that question before the charges can be formally presented in a secure courtroom surrounded by coils of razor wire on the base.
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 the other Malaysian charged in the case, Mohammed Farik 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 the other Malaysian, Mohammed Farik 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 even bring charges — much less get to a trial at some point in the future.
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.
Bin Amin's lawyer, Christine Funk, predicted a lengthy period of defense investigation that will require extensive travel, once the pandemic is over, to interview witnesses and look for evidence. Still, she said, her client is “anxious and eager to litigate this case and go home.”