The military judge in the USS Cole bombing case has denied a defense request to continue using spiral-bound notebooks at legal meetings at the Guantanamo prison camp, bowing to U.S. fears that an alleged terrorist could wiggle the wire out of the notebook and turn it into a weapon.
In a June 13 hearing, criminal defense lawyer Rick Kammen cast the prison’s sudden ban on the notebooks after years on the case as a frivolous exploitation of power. At one point, the lawyer asked the prison’s warden, Army Col. John Bogdan, to field-strip a spiral-bound notebook and turn it into a weapon. Bogdan looked eager to demonstrate. But the judge, Army Col. James Pohl, stopped him.
“The Defense is not entitled to boutique choices regarding the tools that they get to use in client meetings,” Pohl wrote Aug. 12 in a ruling that was kept under seal for 17 days.
“To suggest that denying the Defense the use of spiral-bound notebooks constitutes material prejudice to the Defense strains the bounds of credulity,” he added. “So long as the detention facility commander does not unreasonably and materially restrict the ability of counsel to consult effectively with their clients, this Commission will not second-guess the restrictions favored by the detention facility commander.”
Abd al Rahim al Nashiri, 48, is scheduled to go to trial Sept. 2, 2014, the first capital murder trial of a Guantanamo tribunal, as the alleged mastermind of al-Qaida’s October 2000 suicide bombing of the warship in the port of Aden, Yemen. Seventeen U.S. sailors were killed and dozens more were wounded.
The next USS Cole case hearing is scheduled for Oct. 28.
Pohl has repeatedly advised defense counsel in both the Cole and Sept. 11 terrorism cases that he will defer to Bogdan’s authority “unless restrictions imposed are arbitrary or unreasonable and materially affect a legal right of the accused.”
He invoked a 1972 U.S. Supreme Court ruling, Cruz v. Beto, that said “federal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’” in a case that ruled in favor of Texas prisoner Fred Cruz’s right to “pursue his Buddhist faith comparable to that offered other prisoners adhering to conventional religious precepts.”
Kammen, a civilian who wears a kangaroo lapel pin to the proceedings to show his displeasure that the case is not being heard in a federal court, told the judge in June that he and Nashiri had organized client-case preparation in spiral-bound notebooks for years. Sunday, he was disappointed.
“Only in the secret, expedient and bizarre world of Guantanamo court proceedings would this be an issue,” he said by email. “The fact that the judge sides with the camp commander shows both a disappointing abdication of responsibility and an even more disappointing indifference to the defense needs and responsibilities.”
Bogdan testified that he rejected the spiral-bound notebooks approved by earlier “Joint Detention Group” commanders at Guantanamo because the coiled metal in the lawyer’s notebook could be removed, hidden from the guards, and later fashioned into a “garrote or a weapon.” He said even plastic coils might be dangerous “if the plastic would be firm and strong.”