By Donna Miles
American Forces Press Service
FORT MEADE, Feb. 4, 2013 – Pre-trial hearings for the alleged bomber of the USS Cole opened today at Naval Station Guantanamo Bay, Cuba, and encountered issues from both the prosecution and defense that threatened more delays.
The first of four days of pre-trial hearings in the government’s case against Abd al Rahim Hussein Mohammed Abdu al-Nashiri opened with the defense asking for a postponement over concerns that third-party monitoring could spill over to confidential attorney-client communications.
Army Col. James L. Pohl, the commission judge, denied the request by Navy Lt Cmdr. Stephen Reyes, saying it was based on unsubstantiated suspicion. The judge upheld prosecutor Anthony Mattivi’s argument that the defense bears the burden of proving such allegations and said in his ruling that lacking such proof, the trial will go on.
The debate stemmed from an incident last week during pre-trial hearings for five defendants charged with orchestrating the 9/11 terrorist attacks.
During the Jan. 28 hearing, an unnamed “original classification authority” activated a censor button in the courtroom. The button set off a flashing warning light and blocked about two minutes of audio for everyone observing the proceedings via closed-circuit TV, as well as for media, who sit behind soundproof glass in the courtroom.
The incident caught Pohl and others by surprise, and he ruled last week that in the future, only he will have the authority to block audio feeds believed to contain classified information.
But Reyes told Pohl today the incident opened a Pandora’s Box that needs resolution.
“We can’t ignore the man behind the curtain,” he said, because it is unclear how pervasive the monitoring is. Reyes said the defense team must assume that if a third-party organization is listening in on courtroom activities, it must also assume that it’s eavesdropping on other activities, including privileged discussions between defense lawyers and their client.
“We see a tremendous ethical issue here,” Reyes said. Until these questions are answered, he said there is no way to effectively defend Nashiri. Civilian defense counsel Richard Kammen told the judge he would not meet with his client outside the courtroom until this issue is resolved.
To address these concerns, Pohl suggested that all microphones at empty desks within the courtroom, as well as at the defense table, be “ripped out” and that attorneys address the court only from the podium. He did not, however, order the removal.
Army Brig. Gen. Mark Martins, chief prosecutor in the Office of Military Commissions, denied any insinuation that the prosecution is listening in on or has any access to privileged communication between the defense and defendant.
The prosecution “actively avoids the confidential communications between an accused and his counsel,” he wrote in a statement released today. “This is part of our professional responsibilities and our oaths to serve justice. No one has ever asserted a substantive or credible allegation that the prosecution listens to such communications.”
After Pohl’s ruling, Reyes asked for a three-hour delay to consult with other members of the defense team. The judge approved the request but chided Reyes for not being prepared to move forward and said all parties should be prepared to do so in the future, regardless of how he rules on their motions.
But the government’s case against Nashiri encountered another potential delay as discussion turned to Nashiri’s mental competence. Much of today’s hearing delved into whether he should be evaluated before the trial goes forward, and by whom.
The prosecution challenged the defense claim that Nashiri suffers from long-term post-traumatic stress disorder allegedly caused by CIA torture before he was transferred to Guantanamo Bay. Navy Cmdr. Andrea Lockhart asked Pohl to order a mental health board to evaluate Nashiri and determine the validity of this claim. Kammen questioned what such an assessment would provide, telling Pohl he lacks faith in whatever “hacks” the convening authority might appoint to conduct it.
The judge authorized a mental health exam. But before it is conducted, he granted the defense’s request that Dr. Vincent Iacopino, a member of the Physicians for Human Rights organization, be called on to provide advice on how to conduct it without “doing harm.”
Iacopino is expected to testify within the next day or two. Pohl said he would not take up other legal and administrative issues surrounding the case until after the mental-health assessment is complete.
The prosecution asked the judge today to clarify previous rulings that give Nashiri the right to skip court sessions if he chooses, while also allowing him to change his mind during a day’s proceedings and be transported to the hearing.
The defense team also requested that Nashiri not be restrained with belly chains when he is moved within the detention facility. Defense attorneys said the chains could bring up past trauma from the period when Nashiri was allegedly restrained while he was tortured.
Prosecutors raised concern that eliminating current security safeguards could threaten the safety of others, including the guard force.
Nashiri, who appeared in court in a traditional white tunic and wore headphones to follow the translated proceedings, is the alleged mastermind behind the attack off the Yemeni coast that killed 17 sailors. He 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.
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 -- a civilian oil tanker -- 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.