By
Donna Miles, American Forces Press Service
FT.
MEADE, Md. (NNS) -- Pre-trial hearings for the alleged bomber of the USS Cole
opened Feb. 4 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 Feb. 4 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.
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