HEARING FOR ACCUSED USS COLE BOMBER GOES ON

FROM: U.S. DEPARTMENT OF DEFENSE
Hearing for Accused USS Cole Bomber Continues, Despite Delays
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.

PROSECUTOR REFORMED GUANTANAMO TRIALS ENSURE JUSTICE

FROM:  AMERICAN FORCES PRESS SERVICE

Prosecutor Says Reformed Guantanamo Trials Ensure Justice

By Jim Garamone

FORT MEADE, Md., April 12, 2012 - The chief prosecutor at Guantanamo Bay, Cuba took exception with defense lawyers' characterizations of proceedings on the base as being done without the protections of the U.S. Constitution.

Army Brig. Gen. Mark Martins told a small news conference at the base that the reformed military commissions provide the protections of the U.S. Constitution and will follow the procedures of U.S. federal courts and military courts martials.

"All officials in the federal government have an obligation within their areas of responsibility to help fulfill these requirements, which are among the fundamental guarantees of fairness and justice demanded by our values," Martins said.

Martins spoke at the conclusion of a hearing on motions made for the trial of alleged Cole bombing mastermind Abd al-Rahim Hussein Mohammed Abdu al-Nashiri. The bombing killed 17 U.S. sailors and wounded 39 in Aden, Yemen in October 2000. Al-Nashiri is charged with capital crimes and could be put to death if found guilty. This tinges every decision the commission makes.

Defense motions questioned the prosecution on constitutional grounds, including that the charges violate the equal protection clause, that it was charging him under an ex post facto law, and that it was a bill of attainder. Trial judge Army Col. James Pohl denied all. He further denied a request for all documents given to the defense team be translated into Arabic. There are more than 70,000 pages to date.

The judge granted more time for the defense to present him with a theory of the case, their request for a Yemeni investigator, letters asking for Yemeni evidence and a motion asking for the amount of money and resources the government has expended on this prosecution.

Martins said the scene in the Guantanamo Bay courtroom proved the adversarial nature of American jurisprudence was alive and healthy in the reformed military commissions program.

"Contrary to dark suggestions of some whose minds appear already made up to oppose military commissions regardless of how they are conducted, these protections are implemented by officers, I submit, are worthy of the public trust," Martins said.

In the news conference, Martins listed the rights Al-Nashiri has. The defendant is innocent until proven guilty. He has the right to present evidence, the right to cross-examine witnesses and compel the appearance of witnesses in his defense. The U.S. government has provided more than $100,000 to fund defense requests, which include a full time investigator, a translator and four lawyers – two military and two civilian.

The al-Nashiri prosecution is complicated, the general said. It is further complicated because the crime was 12 years ago, and in another country. Federal trials have stretched years in similar situations, he said.

"Those who state or imply that what you are seeing here would not happen in the federal systems are simply wrong," the general said.

The trials at Guantanamo, while few, are important to the United States and to justice, and are worth every penny invested in them, he said.

"Not only must we continue to pursue the truth for the victims of these bombings, 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."