GUANTANAMO BAY NAVY BASE, Cuba — The accused architect of the bombing of the USS Cole said Wednesday he would keep his Pentagon-paid defense team, allowing pretrial hearings to go forward with a range of structural challenges to President Barack Obama’s war court.
Saudi prisoner Abd al Rahim al Nashiri, 49, apologized for the two-day delay. While in recess, his lawyers persuaded him to let them continue defending him in the case that seeks his military execution as mastermind of al-Qaida’s October 2000 attack off Yemen that killed 17 U.S. sailors.
“I believe we are here in a unique and very strange court,” Nashiri told the judge, Army Col. James Pohl, in brief comments delivered through an interpreter. He was soft spoken and stood unshackled in court in the white prison camp uniform of a cooperative captive.
He noted that he’s never been allowed to see an Arab-American attorney, Ahmad Assed, who he accepted on the team years ago, can no longer see a lawyer who’s represented him since 2008 — and his lawyers go to Top Secret pretrial sessions that he’s not allowed to attend or learn about in detail.
Pohl, for his part, chose not to reply to the soliloquy. Instead, he told the lawyer Nashiri considered firing, Rick Kammen of Indianapolis, that those were structural aspects of the war court his defense team had challenged and lost through legal motions.
Pohl then had lawyers resume eight days of hearings that were suddenly paralyzed on a threat Monday by Nashiri to dismiss Kammen over frustration with attorney access.
Many of the nearly 40 motions on the hearing agenda seek to dismiss some or all of the charges against Nashiri. One seeks to to postpone the Cole trial from September until at least February 2015.
The U.S. captured Nashiri two years later but he was held in secret CIA custody overseas, waterboarded and interrogated with other now banned techniques. President George W. Bush had him moved to Guantánamo for trial in September 2006.
Army Maj. Thomas Hurley, on the defense team, argued that Bush’s remarks years before that called Nashiri the Cole bomber prejudiced the case — and asked Pohl to dismiss the charges or make life in prison the maximum possible punishment at trial.
Navy Lt. Bryan Davis, a prosecutor, said Bush wasn’t trying to contaminate any future trial but was speaking to the nation during “an ongoing war against terror.” By the time Nashiri was charged in this case, he said, Pentagon statements called him an “alleged” terrorist.
Davis invoked the precedent of Lt. William Calley’s 1970s court-martial for the My Lai massacre during the Vietnam War — and said any pretrial publicity could be addressed at selection of Nashiri’s tribunal chosen from a Pentagon pool of U.S. military officers assigned to USS Cole jury duty.
Pretrial motions haggle over evidence and legal questions before the jury is brought to this U.S. Navy base in southeast Cuba to hear the case. Sunday, the chief prosecutor, Army Brig. Gen. Mark Martins, called the prolonged process “an indispensable part of this sharply adversarial process” and “necessary to the fair and open administration of justice.”
Martins himself was briefly at issue Wednesday. A clause of mysterious origin in recent legislation by Congress requires the Pentagon’s chief war crimes prosecutor to be of same rank as the chief defense counsel.
Martins outranks the chief defense counsel, Air Force Col. Karen Mayberry, a problem Martins’ junior prosecutor, Cmdr. Andrea Lockhart, announced in court was already remedied with a waiver from Secretary of Defense Chuck Hagel.
As Nashiri noted in his remarks, some of the hearings have been held in secret.
At the last Nashiri hearing, in June, the judge excluded the public and accused from the courtroom to hear attorneys argue about a government motion so secret it has no name on the Pentagon’s public war court docket. A subsequent, partially released transcript showed the closed hearing included an admission by a prosecutor that the CIA found previously undisclosed photos of Nashiri. Defense lawyers want the photos.
Martins’ statement on the eve of the hearings called secrecy at the war court a function of “the polestar guiding our decisions” to “protect the information we must to safeguard national security, while ensuring that each accused has a meaningful opportunity to challenge the government’s case and that the administration of justice functions in the open.”
Nashiri was charged at the Obama war court in Oct. 26, 2011.
Martins rejected characterizations of the opened-closed nature of the proceedings as “a lazy ‘military commissions pick and choose transparency’ narrative. Sober and fair assessments of this process discredit such claims.”
His statement quantified the closed portion of the proceedings at less than 2 percent — “done consistent with our values and in accordance with the rule of law.”