Judge Hears Arguments on Cole Defendant’s Motions

By Jim Garamone

American Forces Press Service

FORT MEADE, Md.  – A military judge ruled today that a defendant in the USS Cole bombing may meet with his defense attorneys unfettered.

Army Col. James L. Pohl deferred several other defense motions in the case of Abd al-Rahim Hussein Mohammed Abdu al-Nashiri at Guantanamo Bay, Cuba.

Today’s ruling made moot testimony from Nashiri on the effects he felt from his imprisonment prior to arriving at the detention facility in Cuba. That testimony could have contained classified information.

Lawyers also argued on constitutional motions, with the defense arguing that neither terrorism nor conspiracy is a crime under accepted international law. They said Nashiri – who is alleged to have masterminded the plot that killed 17 sailors aboard the USS Cole during an act of terror in Aden, Yemen, in 2000 – cannot be charged with those crimes because they don’t exist.

Pohl indicated he would rule on these motions later. More arguments on other motions will take place tomorrow.

Nashiri is charged with perfidy, 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.

This is a capital case.

The charges arise out of an attempted attack on the USS The Sullivans in January 2000, the actual attack on the USS Cole in October 2000, and an attack on the motor vessel Limburg in October 2002.

Nashiri is a Saudi-born member of al-Qaida. U.S. officials allege he was under the personal supervision of Osama bin Laden, and that bin Laden personally approved the attacks on the U.S. Navy ships.

New York lawyer David Schultz also spoke to the court today, arguing that the peoples’ right to know trumped security concerns in this trial. Schultz, who represented 10 media organizations including the New York Times, the Washington Post, Fox News, NPR and the Miami Herald, based his argument on the 1st Amendment to the Constitution.

He noted that lead prosecutor Army Brig. Gen. Mark Martins has been explaining to audiences around the United States how the reformed military commissions system is the best way to advance the rule of law in these cases. Under U.S. law, public attendance of criminal prosecutions is imperative to fairness, he said.

He reached back to the trial of the Lincoln assassination conspirators in 1865 and the Nuremberg trials after World War II to show that military commissions also honored this idea.

He admitted the government had a right to not reveal classified data during a trial, but argued that there are ways to ensure openness while still protecting the information.

Schultz’ testimony was the first time outside lawyers have argued in front of the panel at Guantanamo.

Pohl did not disagree with Schultz. He maintained that the default setting in his court is a public hearing. He said proceedings should be closed only when the least restrictive measures cannot be imposed.