WAR COURT

Guantánamo prison camps chief defends legal mail monitoring

 

Army Col. James Pohl, judge of the war court at Guantanamo, plans to hear more testimony Wednesday about whether prison staff read captives’ mail.

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Guantánamo captive Abd al Rahim Nashiri’s is the only active prosecution currently at the war court the Bush administration and President Barack Obama had reformed to give accused terrorists more rights similar to federal criminal prosecutions. A senior Pentagon prosecutor, Capt. David Iglesias, predicted moments before the start of Tuesday’s session that 2012 would be the busiest year of commissions so far.

Only six Guantánamo captives have been tried here, and four pleaded guilty to war crimes in exchange for short prison sentences. An Obama task force approved about 30 of the 171 captives currently held at the prison camps for potential commissions.

The Pentagon brought five USS Cole victims to this base to watch the proceedings.

They included two sailors who were aboard the $1 billion U.S. Navy warship when al Qaeda suicide bombers blew up an explosive laden skiff alongside it in the Port of Aden 11 years ago. The others were fathers of two of the slain sailors and one of the slain sailor’s widow.

Besides the Cole attack, Nashiri allegedly also orchestrated the October 2002 suicide bombing of the French oil tanker MV Limburg that killed Bulgarian crew member Atanas Atanasov and spilled 90,000 barrels of oil into the Gulf of Aden.

The U.S. military commissions can prosecute for an attack on a French-owned tanker in foreign waters that killed a Bulgarian citizen, said the Pentagon’s Army Lt. Col. Todd Breasseale, “because it could effect not only our own but potentially global economies. It was an oil tanker just outside the Straits of Hormuz.”


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About Abd al Rahim al Nashiri.

Born: Jan. 5, 1965 Mecca, Saudi Arabia

Captured: October 2002 United Arab Emirates

Profession: Told a 2007 military review that he was a merchant in Mecca who by 19 was a millionaire. CIA profile released by the White House in 2006 as al Qaeda Operations Chief in Arabian Peninsula at time of his capture

Paramilitary background: CIA profile said he fought in Chechnya and Tajikistan and trained at the Khaldan camp in Afghanistan in 1992.

Audio of U.S. military’s 2007 status hearing for Abd al Rahim al Nashiri, with white noise replacing description of torture at www.miamiherald.com/guantanamo

About the USS Cole

The 8,300-ton warship is based, or homeported, as the Navy calls it, in Norfolk, Virginia. It was commissioned, a formal ceremony, at Port Everglades, Florida, in 1996.

The ship is named for Marine Sgt. Darrell S. Cole, a bugler turned machine-gunner, who was killed in the Battle of Iwo Jima in World War II and posthumously awarded the Medal of Honor.

It was on a refueling stop in October 2000 when two al Qaida suicide bombers detonated a bomb-laden skiff into the side, killing themselves and ultimately claiming the lives of 17 Americans.

They were: Hull Maintenance Technician Second Class Kenneth Eugene Clodfelter, 21, of Mechanicsville, Va. Electronics Technician Chief Petty Officer Richard Costelow, 35, of Morrisville, Pa. Mess Management Specialist Seaman Lakeina Monique Francis, 19, of Woodleaf, N.C. Information Systems Technician Timothy Lee Gauna, 21, of Rice, Texas Signalman Seaman Cherone Louis Gunn, 22, of Rex, Ga. Seaman James Rodrick McDaniels, 19, of Norfolk, Va. Engineman Second Class Marc Ian Nieto, 24, of Fond du Lac, Wis. Electronics Warfare Technician Second Class Ronald Scott Owens, 24, of Vero Beach, Fla. Seaman Lakiba Nicole Palmer, 22, of San Diego, Calif. Engineman Fireman Joshua Langdon Parlett, 19, of Churchville, Md. Fireman Patrick Howard Roy, 19, of Cornwall on Hudson, N.Y. Electronics Warfare Technician First Class Kevin Shawn Rux, 30, of Portland, N.D. Mess Management Specialist Third Class Ronchester Manangan Santiago, 22, Kingsville, Texas Operations Specialist Second Class Timothy Lamont Saunders, 32, of Ringgold, Va. Fireman Gary Graham Swenchonis Jr., 26, Rockport, Texas Ensign Andrew Triplett, 31, of Macon, Miss. Seaman Craig Bryan Wibberley, 19, of Williamsport, Md.


crosenberg@miamiherald.com

In unprecedented war court testimony, the prison camps’ commander on Tuesday defended a three-tier system of classifying lawyers’ mail to alleged terrorists that sparked a defense lawyer’s boycott and is threatening to stall future war crimes trials.

It was the first time the camps’ top commander testified at a Guantánamo military commission. Rear Adm. David B. Woods said he had a team of Defense Department contractors examining confidential, privileged attorney-client mail for “safety, force protection and good order.”

At issue is whether the prison camps staff is complying with the chief military commissions judge’s November order to look at, but not read, defense lawyers documents for alleged USS Cole bomber Abd al Rahim al Nashiri that are marked “privileged.”

Woods testified that the contractors are assigned to discern whether lawyers mail is indeed privileged or more generic legal mail. The contractors include former government lawyers, law enforcement officials, linguists and Woods wants them looking at documents for things like diagrams that might threaten security inside the prison camps that hold some 171 foreign captives.

Only Nashiri is currently charged with a war crime, and Pentagon prosecutors are seeking his military execution. The 47-year-old former millionaire from Mecca allegedly orchestrated the October 2000 bombing of the destroyer off Yemen that killed 17 U.S. sailors.

Army Col. James Pohl, the war court judge, summoned Admiral Woods to Camp Justice on less than 90 minutes notice. Even though the admiral outranks him, war court legal officials advised reporters, Woods had to comply with the order.

The admiral donned his Navy blues rather than the desert combat uniform he usually wears to work here. And he was late, drawing an admonition to case prosecutors to get their witnesses to court on time. “I don’t care what their rank is,” the judge said.

Pohl did not rule on the prison camps’ mail review system.

He’ll hear more testimony and arguments on Wednesday.

But the conflict has threatened the future of the war crimes trials.

If the contractors dispute a war court defense lawyer’s decision to stamp a document privileged, under a new policy, Woods as prison camps commander will decide the issue. Except in the Nashiri case, when the admiral will ask the war court judge to do it.

Woods notified commission lawyers of the new policy late last year, sparking a rebellion by an office that before had their “privilege” stamps honored. The chief Defense Counsel, Marine Col. Jeffrey Colwell, advised all military commissions lawyers to stop sending confidential mail to their clients, including the lawyers getting ready for death penalty case against five alleged plotters of the 9/11 attacks.

Defense lawyers argue that a system that answers to the prison camps commander, effectively the warden, violates their ethical obligations as officers of the court. It was unclear Tuesday what contracting firm precisely had the job of sifting through the mail, nor the value of the contract.

Woods, on the job since August, identified the firm in court as the United States Defense Intelligence, USDI.

But Pentagon spokesmen at Guantanamo said that was the acronym for the Defense Department’s Undersecretary of Defense Intelligence, a government entity, not the private contractor entrusted with reviewing privileged mail. They could not immediately name the contractor, nor say whether it's funded through the prison camps’ $800,000-a-year per captive operating budget.

The Chief War Crimes prosecutor, Army Brig. Gen. Mark Martins, said that whatever the contract they are obliged to behave responsibly.

The Chief Defense Counsel, Colwell, said Tuesday’s testimony did not change his advice to Pentagon defenders to stop sending mail to Guantánamo captives that they consider privileged.

“The orders require our attorneys to submit privileged information to an undefined privilege team that we learned today, no one really knows who they work for,” Colwell added. “And they certainly don’t work for the judge.”

In a separate decision, the war court judge rejected a request from Nashiri’s attorneys to allow the former CIA captive to be unshackled during meetings with his lawyers.

Defense lawyer Rick Kammen said Nashiri was traumatized by his treatment in CIA custody — waterboarding, being threatened with a gun and a power drill, all while shackled at the ankles — in the years before he was brought to Guantánamo in 2006.

The judge said the lawyers hadn’t shown evidence that the man was impaired. Meantime, prison camp guards get to decide how to appropriately secure the alleged terrorist during attorney-client meetings.

Nashiri listened to the proceedings alongside his lawyers in the white prison camp uniform of a cooperative captive. He was unshackled and on occasion appeared to fidget. Unlike at his first court hearing in November, he glanced back but didn’t wave at the viewing gallery.

Read more Guantánamo stories from the Miami Herald

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