GUANTANAMO BAY NAVY BASE, Cuba -- Prosecutors working out procedures for handling secret evidence in the trial of an alleged Al Qaida chieftain invoked a surprising precedent Wednesday — the 2007 felony trial of Lewis “Scooter” Libby, former Vice President Dick Cheney’s aide.
At issue here was how, if at all, defense lawyers could challenge substitutions for secret evidence that’s to be shielded from them in the death penalty trial of alleged USS Cole bomber Abd al Rahim al Nashiri. Pentagon prosecutors are seeking his military execution as the alleged mastermind of the October 2000 Cole attack that killed 17 U.S. sailors.
Under the war court rules enacted by the Obama administration with Congress, prosecutors cannot show certain national security evidence to Nashiri nor his Pentagon-approved lawyers. In its place, prosecutors prepare a summary of the secret evidence and the judge decides if it’s a suitable substitute.
Wednesday, the war court judge, Army Col. James Pohl, agreed to let Nashiri’s defense lawyers notify him directly, or ex parte in legal jargon, if they oppose the language or nature of a summary. Nashiri’s lawyers don’t want prosecutors to know about that portion of pre-trial evidentiary wrangling so as not to tip their hand on how they will defend the man.
According to Justice Department lawyer Joanna Baltes, working on the Nashiri case, that was what Libby’s lawyers did ahead of the former White House aide’s 2006 national security trial. Libby was convicted of perjury, obstruction and lying about his role in the leak of undercover CIA Agent Valerie Plame’s identity in the run-up to the U.S. war on Iraq.
Left unexplained was how defense attorneys who can’t see the underlying evidence would be able to reasonably challenge the summary, or substitution for the secret evidence.
CIA agents waterboarded Nashiri and interrogated him with a revved drill and handgun in the years before Nashiri was taken to Guantánamo in 2006 for trial. His lawyers needed to obtain top-secret security clearances to meet him, and work on his case.
The chief Pentagon prosecutor, Army Brig. Gen. Mark Martins, told reporters here that no evidence derived from torture or coercion would be admitted at the trial. One key distinction in the Libby case, Martin said, was that the since disbarred lawyer had a security clearance because of his government job, and so had access to information dating back to his time of employment.
Pohl recessed the case until April to give defense lawyers time to receive, study and get translated to Arabic some 70,000 pages of unclassified evidence against Nashiri, and to seek more evidence through the discovery process.
Nashiri defender Richard Kammen, who warned that “torture will just infect this trial,” disputes that war court lawyers get the same amount of preparation time, resources and access to the accused as a death penalty defense lawyer in U.S. federal courts. He called conditions “Draconianly unfair” Wednesday, and said that the defense team would travel to at least two and possibly five foreign countries to mount a defense.