Prosecutor: Extremist Magazine Prompted Order on Detainee Mail

FORT MEADE, Md., Jan. 18, 2012 — A pros­e­cu­tor in the tri­al of the alleged mas­ter­mind behind the USS Cole bomb­ing divulged today the root of a new order that allows offi­cials to mon­i­tor pris­on­ers’ legal mail at Guan­tanamo Bay, Cuba: a copy of an extrem­ist mag­a­zine found at the deten­tion facil­i­ty.

Navy Cmdr. Andrea Lock­hart, a mem­ber of the pros­e­cu­tion team in the case of Abd al-Rahim al-Nashiri, told the court a copy of Inspire mag­a­zine “got in” to the facil­i­ty, although she did not spec­i­fy exact­ly where. The Eng­lish-lan­guage mag­a­zine is pub­lished by the al-Qai­da of the Ara­bi­an Penin­su­la orga­ni­za­tion, and it includes arti­cles designed to inspire extrem­ists and teach them how to car­ry out vio­lent acts.

Dis­cov­ery of the mag­a­zine – con­sid­ered con­tra­band – sparked Navy Rear Adm. David B. Woods, com­man­der of Joint Task Force Guan­tanamo, to insti­tute a new pol­i­cy last month that allows gov­ern­ment offi­cials to mon­i­tor prisoner’s legal mail.

Lock­hart told the court today the dis­cov­ery of Inspire mag­a­zine demon­strat­ed that pre­vi­ous rules that cov­ered incom­ing mail at the deten­tion cen­ter weren’t suf­fi­cient.

Dur­ing tes­ti­mo­ny yes­ter­day, Woods told Navy Lt. Cmdr. Stephen C. Reyes of the defense team the new pol­i­cy allows mem­bers of a priv­i­lege review team to con­duct a “plain-view review” of writ­ten com­mu­ni­ca­tions not marked as pro­tect­ed attor­ney-client infor­ma­tion. This review, Woods tes­ti­fied, is designed to ensure this cor­re­spon­dence does not include phys­i­cal or infor­ma­tion con­tra­band, such as maps of the deten­tion facil­i­ty.

Woods told the court yes­ter­day the new pol­i­cy bal­ances his respon­si­bil­i­ties to facil­i­tate attor­ney-client com­mu­ni­ca­tion while also ensur­ing secu­ri­ty, safe­ty, force pro­tec­tion and good order at the facil­i­ty. How­ev­er, the new order has become a major stick­ing point in Nashiri’s pre­tri­al hear­ing, even though both the defense and pros­e­cu­tion teams acknowl­edge his mail has nev­er been searched under the new pol­i­cy.

The issue has dom­i­nat­ed dis­cus­sion dur­ing both days of the pre­tri­al hear­ing that began yes­ter­day to address 10 motions filed by the defense and pros­e­cu­tion teams.

Nashiri’s defense team con­tin­ued its argu­ment today that the new pol­i­cy com­pro­mis­es the attor­ney-client priv­i­lege because it allows a spe­cial review team to exam­ine detainees’ legal cor­re­spon­dence. The pros­e­cu­tion pro­posed that the review team oper­ate as an inde­pen­dent body, “walled off” from the pros­e­cu­tion, and that defense attor­neys be able to observe any reviews of their client’s legal doc­u­ments.

The defense con­ced­ed that prison offi­cials need to be able to inspect for con­tra­band, but insist­ed that this should not extend to read­ing legal mail.

After exten­sive dis­cus­sion over the past two days by both teams, Army Col. James Pohl, the judge, deferred a deci­sion on the issue today. He did, how­ev­er, offer the defense assur­ance that a new order will come, prob­a­bly with­in “a cou­ple of weeks.”

Pohl gave the defense team sev­en days to come up with a com­plete order it believes meets its require­ments. He also direct­ed the pros­e­cu­tion to come up with a clear def­i­n­i­tion of what “plain view” means, and said the team will have sev­en days to com­ment on the defense’s pro­posed order.

Con­sid­er­ing anoth­er motion, Pohl respond­ed to a defense con­cern that clas­si­fied infor­ma­tion used by the defense – and sum­ma­rized with the goal of cre­at­ing an unclas­si­fied doc­u­ment that also omits sen­si­tive mate­r­i­al such as sources and col­lec­tion meth­ods – risks leav­ing out key infor­ma­tion the defense team needs.

Richard Kam­men, the lead civil­ian defense coun­sel, argued that Pohl’s deter­mi­na­tions oth­er­wise will be made in a vac­u­um with­out con­sid­er­a­tion for the defense.

Pohl ruled that the defense has until a hear­ing to be sched­uled in April to tell him exact­ly what kind of mate­r­i­al it needs to build its case. That way, he will be able to take that infor­ma­tion into con­sid­er­a­tion when com­par­ing the prosecution’s sum­ma­ry to the source mate­r­i­al.

The judge will then share any changes he makes to the sum­ma­ry with the pros­e­cu­tion team before approv­ing it. At that point, the doc­u­ment becomes final, not able to be recon­sid­ered except in the event of an appeal, offi­cials explained.

Dur­ing a post-hear­ing news con­fer­ence, Kam­men accused the pros­e­cu­tion of try­ing to get Pohl to make a quick, irrev­o­ca­ble deci­sion that will impact the defense’s case, but with no mean­ing­ful input from the defense. He com­mend­ed Pohl for delay­ing action until April, although indi­cat­ing that it’s still too lit­tle time for the defense team to ade­quate­ly review the moun­tains of infor­ma­tion involved and request need­ed resources.

“Three months in the con­text of the demands of this case is a blink of an eye,” he said.

Kam­men again con­demned the mil­i­tary com­mis­sion process, say­ing it was designed “sole­ly to pro­vide the façade of jus­tice, but not real jus­tice.” He said it is “com­plete­ly out­side the pale of what Amer­i­can jus­tice has stood for for 200 years.”

Army Brig. Gen. Mark Mar­tins, chief pros­e­cu­tor for the Office of Mil­i­tary Com­mis­sions, under­scored the impor­tance of pro­tect­ing clas­si­fied infor­ma­tion as well as sen­si­tive infor­ma­tion when it is in the pub­lic inter­est dur­ing this and oth­er tri­als.

He empha­sized that mil­i­tary com­mis­sions – like all crim­i­nal tri­als in the U.S. fed­er­al sys­tem of crim­i­nal jus­tice – must sub­scribe to rules that bal­ance the accused’s right to a fair tri­al and the need to pro­tect nation­al secu­ri­ty and oth­er pub­lic inter­ests. Although Nashiri was in the court­room dur­ing today’s pro­ceed­ings, all the activ­i­ty revolved around the pros­e­cu­tion and defense teams.

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 crew mem­ber 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.

The Guan­tanamo Bay pro­ceed­ings are being broad­cast via closed cir­cuit tele­vi­sion to three sites in the Unit­ed States. Two of those sites are 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 crew mem­bers aboard the ves­sel dur­ing the attack.

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