USS Cole bombing: Judge allows prosecution to use 'sanitized' evidence

A military judge at Guantanamo Wednesday cleared the way for the government to prosecute the accused mastermind of the USS Cole bombing based on "sanitized" summaries of classified evidence rather than risk the disclosure of sensitive intelligence sources and methods.

In an important victory for prosecutors, the judge, US Army Col. James Pohl, rejected a request by defense lawyers representing alleged Al Qaeda leader Abdal Rahim Al-Nashiri that they be allowed to participate in the formulation of the unclassified summaries.

Judge Pohl seemed sympathetic to the defense request, but ultimately ruled that the Military Commissions Act required him to exclude defense lawyers from direct involvement in deciding how classified information will be summarized for use as evidence against their client.

The provision cited by the judge stems from an effort by Congress to make it possible for prosecutors at a military commission trial to tap into a vast trove of intelligence information for use as evidence while minimizing the risk of an unintentional disclosure of national secrets. 

The provision also helps the government ensure that classified documents revealing potentially embarrassing or illegal activities may be excluded from consideration as evidence in the case.

The ruling is a setback to defense efforts. It places attorneys for Mr. Nashiri at a significant disadvantage because the governing statute requires that once Judge Pohl approves evidence summaries, that action is final and not subject to reconsideration.

Defense lawyers had asked the judge to allow them to examine the proposed summaries and provide their perspective before the judge gave his final approval. Government lawyers objected, saying the statute forbids such a procedure. 

“Please don’t make this decision in a capital case in a complete vacuum,” Lead Defense Counsel Richard Kammen urged the judge. “It really is just fundamental fairness given the stakes.”

The judge said his hands were tied by the provision in the Military Commissions Act. 

Prosecutor Anthony Mattivi took exception to Mr. Kammen’s comments. “The government has no interest in the military judge making a decision in a vacuum,” he said. “We want this to be sustained on appeal.” 

Judge Pohl provided a concession to the defense team on the summary evidence issue. He said he would give them until the next hearing in the Nashiri case in April to submit any information to him that they feel might help the judge assess the relevance and accuracy of the government’s summaries from a defense perspective. 

But it is unclear how defense lawyers will be able to know what may be the subject of the government’s proposed summaries since they are being denied access to the underlying classified information.    

“We don’t even know what the [government’s proposed summary] material is about,” Kammen said. 

“The investigation? What happened in Yemen? What happened in another place? We have no idea,” the lawyer said. “So part of the challenge is guessing how it would impact our defense.” 

Kammen added: “Perhaps after we have reviewed the discovery, perhaps we will be able to discern what it may be about. But it will be, at best, an educated guess.” 

Discovery is information gathered by prosecutors related to a case that must be turned over to defense counsel to help them prepare for trial.

So far defense lawyers have received more than 17,000 pages of material and are slated to receive an additional 60,000 to 70,000 pages. 

Although the judge is following the rules established by Congress for military commissions, the defense attorneys find themselves in an unusual position, particularly in a case in which the federal government is seeking the death penalty.

“Today was really about secrecy,” Kammen said. “And it was about imposing rules unlike any rules in federal court, unlike rules in any capital case in any state court in the United States.” 

Judge Pohl’s rulings came as defense lawyers and military prosecutors at Guantanamo squared off Wednesday in a second day of pre-trial motions in Nashiri’s planned military commission trial. Reporters monitored the hearing via a live video feed at Fort Meade in Maryland.

Nashiri faces a potential death sentence for his role in the Cole attack in 2000 that killed 17 American service members. He is also charged with plotting a failed attack on the USS The Sullivans and a 2002 assault on the French supertanker MV Limburg that killed a crewmember.  

A trial date has not yet been set.

Judge Pohl is being asked to decide a string of foundational issues in a newly-minted military commission format that has not yet been fully tested.

In addition to the classified summary issue, Nashiri’s lawyers have complained that security officials at the terror detention camp at Guantanamo are interfering with the delivery of attorney-client privileged documents. Under a recent order by the commander of the camp, a special review team would be tasked to examine communications between the lawyers and their client to ensure they are properly marked as privileged documents and do not include any unauthorized items. 

Defense lawyers say the practice threatens to violate the attorney-client privilege and undermines a detainee’s right to the effective assistance of counsel.

Security officials at Guantanamo defend the practice as a necessary precaution to prevent the smuggling of contraband into the detention facility and the transmission of any unauthorized information to or from a detainee.

Government lawyers insist there is no contact between Nashiri’s prosecutors and the security team assigned to examine the attorney-client communications. But Nashiri’s lawyers say they are entitled to a stronger guarantee than simply “trust us.”

Navy Commander Andrea Lockhart, a government lawyer, told Judge Pohl that the new policy was prompted in part because someone smuggled into the camp a copy of Inspire Magazine, an Al-Qaeda supportive publication.

Ms. Lockhart stressed that the review procedures were not designed to violate Nashiri’s attorney-client privilege. “Privileged mail is not being read,” she said. “It is not being read.”

Navy Lieutenant Commander Stephen Reyes, a defense lawyer, said under the proposed review procedure attorney-client material may ultimately be passed to three levels of review simply to determine compliance with the underlying order.

“That in no way protects the attorney-client privilege,” Mr. Reyes said.

“In the end of the day it is about trust,” Reyes told the judge. He said defense lawyers like prosecutors are both officers of the court and officers in the military and have a responsibility to ensure that Nashiri is adequately defended and to prevent anything that might undermine security measures at the detention facility.

After two hours of argument, Judge Pohl ordered the defense lawyers to present a proposed order resolving the attorney-client document issue within seven days. He then gave the government seven days after that submission to prepare its own suggested order.

Judge Pohl said he would consider the proposals and craft an order. “You are going to get a new order in writing and everyone will understand it,” he said.

Defense counsel also objected that they are being forced to use government computers and the military’s Internet system to send e-mail. They say this leaves their computer-based work and sensitive e-mails open to potential monitoring by Defense Department officials.

On Tuesday, Judge Pohl authorized the defense team to use encryption software to protect their computer files and e-mail from potential surveillance or interception.