Pretrial Proceedings Begin for Alleged USS Cole Mastermind

By Donna Miles
American Forces Press Service

FORT MEADE, Md., Jan. 17, 2012 – The commander of the U.S. detention facility at Naval Station Guantanamo Bay, Cuba, defended the new policy that allows government officials to monitor prisoners’ mail during the opening day of pretrial proceedings for the alleged mastermind in the USS Cole bombing.

Navy Rear Adm. David Woods, commander of Joint Task Force Guantanamo Bay, testified today in response to a motion by the defense at the military commission hearing for Abd al-Rahim Hussein Muhammed al Nashiri. Army Col. James Pohl ruled during proceedings at Guantanamo Bay that Woods should explain the policy he instituted last month.

Woods, one of the highest-level officials to testify in a military tribunal, said the new policy balances his responsibilities to facilitate attorney-client communication while also ensuring security, safety, force protection and good order at the facility.

Woods told Navy Lt. Cmdr. Stephen C. Reyes of the defense team the new policy allows members of a team that reviews detainee privileges to conduct a “plain-view review” of written communications not marked as protected attorney-client information. The review, he said, is designed to ensure this correspondence does not include physical or “information contraband” such as maps of the detention facility.

Woods disputed the defense position that the policy violates client-attorney privilege, or that reviewers must read the material in full to make a determination. He also denied that the policy restricts access between detainees and their lawyers.

One of its benefits, he said, is authorizing guards to search the plastic bins reserved for legal paperwork and correspondence in detainee living spaces. Guards reportedly have found contraband stowed in these “legal bins” in the past.

Woods acknowledged that the policy depends on the professionalism of the privileged review team, as well as their contractual commitments, to ensure their review is conducted properly and ethically. He noted that reviewers, all civilian contractors, must sign a non-disclosure agreement that bars them from sharing this information, particularly with prosecuting attorneys associated with the case.

The prosecution called the defense’s request for Woods to appear before the court irrelevant to the case because Nashiri hasn’t been subject to mail searches.

However, officials said Pohl’s decision to call him likely was made because what happens in the Nashiri case – the first to go through a revised military commission system -- is likely to set the precedent for trials to follow. Army Col. John Head, deputy chief of staff for the convening authority, told reporters the defense’s request likely is intended to institute an across-the-board process that ensures all detainees receive equal treatment.

Pohl is expected to render a decision tomorrow, the second of two days of a pretrial hearing to consider 10 motions in the case.

Nashiri, 47, is charged with "perfidy," or treachery; murder in violation of the law of war; attempted murder in violation of the law of war; terrorism; conspiracy; intentionally causing serious bodily injury; attacking civilians; attacking civilian objects; and hazarding a vessel.

The charges arise out of an attempted attack on the USS The Sullivans in January 2000 and an attack on the USS Cole in October 2000, during which 17 U.S. sailors were killed and 37 more wounded. Nashiri also is accused of involvement in an attack on the MV Limburg, a French civilian oil tanker, in October 2002 in which one crewmember was killed and about 90,000 barrels of oil spilled into the Gulf of Aden. If convicted, Nashiri could be sentenced to death.

Nashiri did not enter a plea during his arraignment at Guantanamo Bay in November.

Although the defendant was in the room during today’s proceedings – albeit it out of camera view for remote viewers for most of the hearing – all the activity revolved around the prosecution and defense teams.

Pohl rejected two defense motions: one to allow Nashiri to be unrestrained during his meetings with his legal counsel, and one to establish an enclave – a protected network within the larger Defense Department computer network – in an effort to keep DOD from monitoring the defense counsel’s computers and electronic communications.

Pohl dismissed civilian defense counsel Richard Kammen’s argument that defense counsel should be able to meet with unrestrained detainees in locked-room meetings, as representatives of the International Committee of the Red Cross are able to.

The current policy requires detainees to be shackled and in an unlocked room during meetings with their attorneys, enabling guards to enter the room and for attorneys to exit quickly in the event of a disturbance, the prosecution noted.

Anthony W. Mattivi, a member of the prosecution team representing the Justice Department, expressed concern that changing the current policy could put the guards at increased risk and said Woods should be the one to make any changes to the policy, not the court. “That’s not his call,” Mattivi said of Kammen. “It’s the commander’s.”

Pohl agreed, ruling to keep the current policy intact.

The judge, however, left the door open for a possible request by the defense for an enclave or other security remedy for its electronic communications in the future, while acknowledging that even material in enclaves is subject to monitoring.

Kammen compared the encryption system the defense now uses to protect sensitive materials to putting them in a locked drawer in an office, then handing the government the key to the drawer and leaving the office door open. “It’s the appearance of confidentiality without the substance,” he told the court.

Lockhart argued that an enclave isn’t necessary because encryption already ensures the maximum security possible for the documents. Pentagon computer security expert Adam Bennett, whom she called to the stand, said it’s virtually impossible for government officials to access encrypted information or open documents – including those used by the defense team – without the password and encryption software needed to access it.

Both the defense and prosecution, as well as the judge, recognized that all material on DOD networks is subject to routine, noncontent-related screening to prevent viruses and cyber attacks.

In other motions considered today, Pohl granted a motion supporting more public access to court proceedings. Currently the proceedings are broadcast from the court at Guantanamo Bay via closed circuit to just three locations in the United States. Two of those sites are here at Fort Meade in a theater and training-room facility. Another, at Norfolk Naval Base, Va., is reserved for families of USS Cole victims as well as crewmembers aboard the vessel during the attack.

Pohl also moved that unofficial transcripts of the proceedings, posted online while the official transcript remains classified, may be referred to by both legal teams during the trial.

Speaking to reporters after the hearing, Kammen said the defense considered today “on balance, a very successful day,” while acknowledging that some of the motions made could ultimately delay the trial, possibly as far out as 2015.

Kammen called military commissions “at best, a second-class system of justice” and said they are designed to be secretive and provide expedient justice at the expense of transparency and fairness. He added that the defense team today fought for things it wouldn’t have had to in federal court, and accused the government of blurring the line between classified and embarrassing information.

Army Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, disputed Kammen’s charges, noting that the prosecution team in the commissions operates much like prosecutors in federal courts. They play no part in handling defendant’s correspondence or defense attorney’s emails, don’t communicate with facility personnel about contacts with an accused legal materials and aren’t privy to those materials, he said.

Martins said proceedings like today’s are designed to ensure legal issues are resolved in a way “consistent with the fair, transparent and accountable administration of justice under the rule of law.”

Despite the manpower and expense associated with the commission proceedings, Martins said the United States has a responsibility to follow them through. “Not only must we continue to pursue the truth for the surviving family members of victims who have been rendered silent, but we must also pursue it because that is what justice requires,” he said. “A civilized and open society facing very real and modern security threats can demand no less.”