USS Cole bombing: Defense grills judge as suspect is arraigned in Cuba

Suspected Al Qaeda operative Abdal Rahim al-Nashiri appeared before a military judge at the US Naval Base at Guantánamo Bay, Cuba, Wednesday to face war crimes charges that he masterminded the Oct. 2000 suicide attack on the USS Cole in Yemen.

Mr. Nashiri, dressed in a white prison uniform, sat quietly at the defense table beside his lawyers as the judge, US Army Col. James Pohl, advised him of his rights and of the nine crimes he is alleged to have committed.

Judge Pohl then instructed Nashiri to stand. “I now ask you how do you plead?”

Defense Counsel Richard Kammen spoke for his client: “The defense reserves pleas and motions at this time.”

The action set in motion a specially designed military commission process that the US government hopes will end with Nashiri’s execution.

It is a legal process denounced by human rights advocates as inferior and unjust. Supporters defend the special trial rules as necessary to protect national security in an age of terrorism.

In addition to hearing several legal motions, Pohl set a tentative trial date of Nov. 9, 2012.

Nashiri’s arraignment at the naval base was broadcast live to an auditorium at Fort Meade for members of the media who did not travel to Cuba for the hearing, including this correspondent.

Also in the courtroom were relatives of the 17 Cole crewmembers killed in the Al Qaeda attack, in which two Yemenis in a launch loaded with explosives motored up to the ship and waved hello to sailors before detonating their bomb, tearing a 30-foot gash in the Cole’s hull.

John Clodfelter said he made the trip to Guantánamo from his home in Mechanicsville, Va., for a specific purpose. “I wanted to be able to face him face-to-face if for no other reason than to let him know, ‘Hey, you haven’t gotten away with this,’ ” he said.

He said he was surprised when he first saw Nashiri, as he was led into the courtroom. “When we first saw him he was just a pitiful looking person,” he said.

Mr. Clodfelter’s son, Kenneth, is the first Cole victim listed in the charging documents. He said the boat apparently exploded near where his son had been sitting on the inside of the hull. Officials had difficulty recovering Kenneth Clodfelter’s body.

“We had to bury him three different times,” the father said.

Nashiri is charged with having organized and set in motion a series of Yemen-based attacks reportedly authorized by Osama bin Laden. In addition to the Cole attack, Nashiri allegedly attempted a similar suicide attack against the USS The Sullivans in Sept. 2000. That attack failed when the explosives-laden boat foundered in the surf after being launched.

Nashiri is also charged with having organized and set in motion an October 2002 attack against the French supertanker MV Limburg. One crew member on the tanker died in the blast.

Nashiri has been in US custody for nine years, four of them in the company of CIA interrogators. They allegedly threatened him with a pistol and drill, and subjected him to the notorious interrogation technique called waterboarding. Nashiri’s lawyer and human rights advocates denounce the tactic as torture.

The proceedings against Nashiri are somewhat different than a criminal case in federal court. One such difference is that Col. Pohl offered both the defense and the prosecution an opportunity to question him and decide whether to challenge his appointment as the judge to preside over the war crimes tribunal.

Mr. Kammen grilled the officer on several controversial aspects of the case.

“How do you feel about the death penalty,” he asked.

“What difference does that make,” the judge responded. “Is that an appropriate question for a judge?”

He added: “My position is this, I will apply the law as given.”

Kammen asked the judge to assume that Nashiri was guilty of all that he’s been charged with. “Could a sentence other than death be full and fair justice under those circumstances?”

Pohl said sentencing decisions would be made by the members of the commission – the military equivalent of a jury.

The defense lawyer wanted to know if the judge felt Nashiri’s alleged torture should be a mitigating factor against his receiving a death sentence.

“Do you think it is,” the judge asked.

“Me? Absolutely,” Kammen said.

“If you think so, introduce it,” the judge said, suggesting that he would consider the issue during the trial.

But the defense lawyer wasn’t finished.
 
 “Do you believe that by torturing Mr. Al-Nashiri that the US has forfeited its moral authority to seek” his execution, Kammen asked.

“I’m not going to answer that,” the judge said.

This kind of aggressive interrogation would never take place in a federal courtroom. It might even win a defense lawyer a fine for contempt.

After several more questions, the judge had one for Kammen: “Do you wish to challenge me?”

“No,” the lawyer said.

But Kammen’s assault on the commission process was just getting warmed up. He asked Pohl to order military prosecutors to state on the record that even if Nashiri is acquitted of all charges at Guantánamo, the US government would simply continue to detain him indefinitely as an enemy combatant.

The defense lawyer suggested that some commission members might consider the trial to be meaningless.

Anthony Mattivi, a government lawyer, disputed the suggestion that the military tribunal would be meaningless. “There is substantial meaningful work to be done before this commission,” he said. “This commission is authorized … to render a very meaningful verdict. Any subsequent sentence is separate and apart from anything that may happen to the accused as a result of his actions.”

The defense team then switched gears and complained to the judge that officials at the Guantánamo detention facility had been reading their attorney-client legal papers.

A prosecutor defended the practice as necessary for safety and to protect national security. She said the officials conducted only a “cursory” examination of the attorney-client materials and did not share any information with the prosecution team.

Defense counsel Navy Lt. Cmdr. Stephen Reyes told the judge that the defense team had information that the reviews were undertaken with the assistance of an Arabic linguist detailed from the intelligence department.

In federal court such an apparent violation of the attorney-client privilege would generate a hearing and possible sanctions.

Lt. Cmdr. Reyes stressed that the government is seeking the death penalty in Nashiri’s case.

Military prosecutors insisted that officials had not actually read the privileged attorney-client material. They had only given them a “cursory review.”

Reyes called the top lawyer at Guantánamo as a witness to verify that attorney-client materials from the Nashiri case had been examined on the orders of the base commander.

“Did you advise the [base] commander on the legality of this review,” Reyes asked Navy Cmdr. Thomas Welch, the judge advocate for Joint Task Force, Guantánamo.

“I did, but the commander makes the call,” Welch said. Welch added that the commander was relying on his authority to safeguard the security of the base.

“What information did you give him,” Reyes asked Welch.

At that point, a military prosecutor objected, arguing that any conversation between Welch and the commander would be attorney-client privileged information.

“What if he just gives me a cursory review,” Reyes replied.