Pretrial Proceedings Begin for Alleged USS Cole Mastermind

FORT MEADE, Md., Jan. 17, 2012 — The com­man­der of the U.S. deten­tion facil­i­ty at Naval Sta­tion Guan­tanamo Bay, Cuba, defend­ed the new pol­i­cy that allows gov­ern­ment offi­cials to mon­i­tor pris­on­ers’ mail dur­ing the open­ing day of pre­tri­al pro­ceed­ings for the alleged mas­ter­mind in the USS Cole bomb­ing.

Navy Rear Adm. David Woods, com­man­der of Joint Task Force Guan­tanamo Bay, tes­ti­fied today in response to a motion by the defense at the mil­i­tary com­mis­sion hear­ing for Abd al-Rahim Hus­sein Muhammed al Nashiri. Army Col. James Pohl ruled dur­ing pro­ceed­ings at Guan­tanamo Bay that Woods should explain the pol­i­cy he insti­tut­ed last month. 

Woods, one of the high­est-lev­el offi­cials to tes­ti­fy in a mil­i­tary tri­bunal, said the new pol­i­cy bal­ances his respon­si­bil­i­ties to facil­i­tate attor­ney-client com­mu­ni­ca­tion while also ensur­ing secu­ri­ty, safe­ty, force pro­tec­tion and good order at the facility. 

Woods told Navy Lt. Cmdr. Stephen C. Reyes of the defense team the new pol­i­cy allows mem­bers of a team that reviews detainee priv­i­leges to con­duct a “plain-view review” of writ­ten com­mu­ni­ca­tions not marked as pro­tect­ed attor­ney-client infor­ma­tion. The review, he said, is designed to ensure this cor­re­spon­dence does not include phys­i­cal or “infor­ma­tion con­tra­band” such as maps of the deten­tion facility. 

Woods dis­put­ed the defense posi­tion that the pol­i­cy vio­lates client-attor­ney priv­i­lege, or that review­ers must read the mate­r­i­al in full to make a deter­mi­na­tion. He also denied that the pol­i­cy restricts access between detainees and their lawyers. 

One of its ben­e­fits, he said, is autho­riz­ing guards to search the plas­tic bins reserved for legal paper­work and cor­re­spon­dence in detainee liv­ing spaces. Guards report­ed­ly have found con­tra­band stowed in these “legal bins” in the past. 

Woods acknowl­edged that the pol­i­cy depends on the pro­fes­sion­al­ism of the priv­i­leged review team, as well as their con­trac­tu­al com­mit­ments, to ensure their review is con­duct­ed prop­er­ly and eth­i­cal­ly. He not­ed that review­ers, all civil­ian con­trac­tors, must sign a non-dis­clo­sure agree­ment that bars them from shar­ing this infor­ma­tion, par­tic­u­lar­ly with pros­e­cut­ing attor­neys asso­ci­at­ed with the case. 

The pros­e­cu­tion called the defense’s request for Woods to appear before the court irrel­e­vant to the case because Nashiri has­n’t been sub­ject to mail searches. 

How­ev­er, offi­cials said Pohl’s deci­sion to call him like­ly was made because what hap­pens in the Nashiri case – the first to go through a revised mil­i­tary com­mis­sion sys­tem — is like­ly to set the prece­dent for tri­als to fol­low. Army Col. John Head, deputy chief of staff for the con­ven­ing author­i­ty, told reporters the defense’s request like­ly is intend­ed to insti­tute an across-the-board process that ensures all detainees receive equal treatment. 

Pohl is expect­ed to ren­der a deci­sion tomor­row, the sec­ond of two days of a pre­tri­al hear­ing to con­sid­er 10 motions in the case. 

Nashiri, 47, is charged with “per­fidy,” or treach­ery; 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 and an attack on the USS Cole in Octo­ber 2000, dur­ing which 17 U.S. sailors were killed and 37 more wound­ed. Nashiri also is accused of involve­ment in an attack on the MV Lim­burg, a French civil­ian oil tanker, in Octo­ber 2002 in which one crewmem­ber was killed and about 90,000 bar­rels of oil spilled into the Gulf of Aden. If con­vict­ed, Nashiri could be sen­tenced to death. 

Nashiri did not enter a plea dur­ing his arraign­ment at Guan­tanamo Bay in Novem­ber. Although the defen­dant was in the room dur­ing today’s pro­ceed­ings – albeit it out of cam­era view for remote view­ers for most of the hear­ing – all the activ­i­ty revolved around the pros­e­cu­tion and defense teams. 

Pohl reject­ed two defense motions: one to allow Nashiri to be unre­strained dur­ing his meet­ings with his legal coun­sel, and one to estab­lish an enclave – a pro­tect­ed net­work with­in the larg­er Defense Depart­ment com­put­er net­work – in an effort to keep DOD from mon­i­tor­ing the defense counsel’s com­put­ers and elec­tron­ic communications. 

Pohl dis­missed civil­ian defense coun­sel Richard Kammen’s argu­ment that defense coun­sel should be able to meet with unre­strained detainees in locked-room meet­ings, as rep­re­sen­ta­tives of the Inter­na­tion­al Com­mit­tee of the Red Cross are able to. 

The cur­rent pol­i­cy requires detainees to be shack­led and in an unlocked room dur­ing meet­ings with their attor­neys, enabling guards to enter the room and for attor­neys to exit quick­ly in the event of a dis­tur­bance, the pros­e­cu­tion noted. 

Antho­ny W. Mat­tivi, a mem­ber of the pros­e­cu­tion team rep­re­sent­ing the Jus­tice Depart­ment, expressed con­cern that chang­ing the cur­rent pol­i­cy could put the guards at increased risk and said Woods should be the one to make any changes to the pol­i­cy, not the court. “That’s not his call,” Mat­tivi said of Kam­men. “It’s the commander’s.”

Pohl agreed, rul­ing to keep the cur­rent pol­i­cy intact. 

The judge, how­ev­er, left the door open for a pos­si­ble request by the defense for an enclave or oth­er secu­ri­ty rem­e­dy for its elec­tron­ic com­mu­ni­ca­tions in the future, while acknowl­edg­ing that even mate­r­i­al in enclaves is sub­ject to monitoring. 

Kam­men com­pared the encryp­tion sys­tem the defense now uses to pro­tect sen­si­tive mate­ri­als to putting them in a locked draw­er in an office, then hand­ing the gov­ern­ment the key to the draw­er and leav­ing the office door open. “It’s the appear­ance of con­fi­den­tial­i­ty with­out the sub­stance,” he told the court. 

Lock­hart argued that an enclave isn’t nec­es­sary because encryp­tion already ensures the max­i­mum secu­ri­ty pos­si­ble for the doc­u­ments. Pen­ta­gon com­put­er secu­ri­ty expert Adam Ben­nett, whom she called to the stand, said it’s vir­tu­al­ly impos­si­ble for gov­ern­ment offi­cials to access encrypt­ed infor­ma­tion or open doc­u­ments – includ­ing those used by the defense team – with­out the pass­word and encryp­tion soft­ware need­ed to access it. 

Both the defense and pros­e­cu­tion, as well as the judge, rec­og­nized that all mate­r­i­al on DOD net­works is sub­ject to rou­tine, non­con­tent-relat­ed screen­ing to pre­vent virus­es and cyber attacks. 

In oth­er motions con­sid­ered today, Pohl grant­ed a motion sup­port­ing more pub­lic access to court pro­ceed­ings. Cur­rent­ly the pro­ceed­ings are broad­cast from the court at Guan­tanamo Bay via closed cir­cuit to just three loca­tions in the Unit­ed States. Two of those sites are here at Fort Meade in a the­ater and train­ing-room facil­i­ty. Anoth­er, at Nor­folk Naval Base, Va., is reserved for fam­i­lies of USS Cole vic­tims as well as crewmem­bers aboard the ves­sel dur­ing the attack. 

Pohl also moved that unof­fi­cial tran­scripts of the pro­ceed­ings, post­ed online while the offi­cial tran­script remains clas­si­fied, may be referred to by both legal teams dur­ing the trial. 

Speak­ing to reporters after the hear­ing, Kam­men said the defense con­sid­ered today “on bal­ance, a very suc­cess­ful day,” while acknowl­edg­ing that some of the motions made could ulti­mate­ly delay the tri­al, pos­si­bly as far out as 2015. 

Kam­men called mil­i­tary com­mis­sions “at best, a sec­ond-class sys­tem of jus­tice” and said they are designed to be secre­tive and pro­vide expe­di­ent jus­tice at the expense of trans­paren­cy and fair­ness. He added that the defense team today fought for things it would­n’t have had to in fed­er­al court, and accused the gov­ern­ment of blur­ring the line between clas­si­fied and embar­rass­ing information. 

Army Brig. Gen. Mark Mar­tins, chief pros­e­cu­tor for the Office of Mil­i­tary Com­mis­sions, dis­put­ed Kammen’s charges, not­ing that the pros­e­cu­tion team in the com­mis­sions oper­ates much like pros­e­cu­tors in fed­er­al courts. They play no part in han­dling defendant’s cor­re­spon­dence or defense attorney’s emails, don’t com­mu­ni­cate with facil­i­ty per­son­nel about con­tacts with an accused legal mate­ri­als and aren’t privy to those mate­ri­als, he said. 

Mar­tins said pro­ceed­ings like today’s are designed to ensure legal issues are resolved in a way “con­sis­tent with the fair, trans­par­ent and account­able admin­is­tra­tion of jus­tice under the rule of law.” 

Despite the man­pow­er and expense asso­ci­at­ed with the com­mis­sion pro­ceed­ings, Mar­tins said the Unit­ed States has a respon­si­bil­i­ty to fol­low them through. “Not only must we con­tin­ue to pur­sue the truth for the sur­viv­ing fam­i­ly mem­bers of vic­tims who have been ren­dered silent, 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.” 

U.S. Depart­ment of Defense
Office of the Assis­tant Sec­re­tary of Defense (Pub­lic Affairs) 

Team GlobDef

Seit 2001 ist im Internet unterwegs, um mit eigenen Analysen, interessanten Kooperationen und umfassenden Informationen für einen spannenden Überblick der Weltlage zu sorgen. war dabei die erste deutschsprachige Internetseite, die mit dem Schwerpunkt Sicherheitspolitik außerhalb von Hochschulen oder Instituten aufgetreten ist.

Alle Beiträge ansehen von Team GlobDef →