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)