WAR COURT

USS Cole lawyers spar over hearsay evidence at Guantánamo war court

 

About Abd al Rahim al Nashiri:

Born: Jan. 5, 1965 in Mecca, Saudi Arabia.

Captured: October 2002 in United Arab Emirates.

Arrived Guantánamo: September 2006 after years in secret CIA prisons.

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 said he was al-Qaida‘s 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.

ABOUT THE USS COLE

The 8,300-ton warship is based in Norfolk, Va. It was commissioned, a formal ceremony, at Port Everglades 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 drove a bomb-laden ship into the side, killing themselves and ultimately claiming the lives of 17 Americans. They were:

Hull Maintenance Technician 2nd 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 2nd Class Marc Ian Nieto, 24, of Fond du Lac, Wis.

Electronics Warfare Technician 2nd Class Ronald Scott Owens, 24, of Vero Beach.

Seaman Lakiba Nicole Palmer, 22, of San Diego.

Engineman Fireman Joshua Langdon Parlett, 19, of Churchville, Md.

Fireman Patrick Howard Roy, 19, of Keedysville, Md.

Electronics Warfare Technician 1st Class Kevin Shawn Rux, 30, of Portland, N.D.

Mess Management Specialist 3rd Class Ronchester Manangan Santiago, 22, Kingsville, Texas.

Operations Specialist 2nd Class Timothy Lamont Saunders, 32, of Ringgold, Va.

Fireman Gary Graham Swenchonis Jr., 26, of Rockport, Texas

Ensign Andrew Triplett, 31, of Macon, Miss.

Seaman Craig Bryan Wibberley, 19, of Williamsport, Md.

ABOUT THE TRIAL

Arraigned: Nov. 10, 2011.

Prosecution: Navy Cmdr Andrea Lockhart, Army Brig. Gen. Mark Martins, Pentagon civilian Justin Sher, Navy Lt. Bryan Davis, Army Maj Evan Seamone, Navy Lt. Paul Morris.

Defense: Rick Kammen, learned counsel; Navy Cmdr. Brian Mizer; Air Force Maj. Alison Danels; Army Maj. Thomas Hurley.

Proposed trial date: Sept. 2, 2014.


crosenberg@MiamiHerald.com

Prosecutors propose to use 72 pieces of hearsay evidence from 66 absent witnesses, a lawyer disclosed at the war court Friday in a bid to block hearsay at the USS Cole bombing trial.

At least one witness was killed in a U.S. drone attack.

“You can't change the rules of evidence after the fact and make it easier to convict someone,” said Navy Cmdr Brian Mizer, a defense lawyer for Abd al Rahim al Nashiri.

Nashiri, 49, is accused of orchestrating the October 2000 warship bombing that killed 17 U.S. sailors. He could be executed if convicted in a military tribunal currently slated to start Sept. 2.

Hearsay use is one of the most controversial aspects of the war court system here because — with rare exceptions — a U.S. defendant has a bedrock constitutional right to confront his accusers. But in 2009, Congress gave the war court more liberal use of hearsay because some witnesses are out of reach of the court, unavailable for cross-examination.

Court records indicate that many, if not all, of the missing witnesses are Yemeni. Many of them were interviewed more than a decade ago as FBI and NCIS agents were hunting who was behind al-Qaida’s bombing of the $1 billion destroyer during a refueling stop off Aden.

The chief prosecutor, Army Brig. Gen. Mark Martins, argued that hearsay evidence is allowed at the war crimes tribunals if a military judge decides that it’s relevant, corroborated and wasn’t coerced.

“Is it in the interest of justice and is there any indication that the will of the declarant is overborne?” Martins told the judge, Army Col. James Pohl, who would decide which hearsay evidence to allow.

But Mizer cast the hearsay exception as inapplicable at the Cole trial because Congress created the rule in 2009, seven years after Nashiri’s capture and nine years after the attack. Rather, he cast it as a rule made up after the fact, ex post facto.

Martins argued that Congress had the authority to change the procedure for evidence at the Guantánamo war court. Besides, he said, it doesn’t create a disadvantage for the defense because they can use hearsay too, if they can show the judge they need it.

Nashiri got to Guantánamo in September 2006 after years in secret CIA lockups where agents waterboarded and interrogated him with other now-banned techniques. Congress adopted the current procedures in 2009.

In 2008, Mizer defended Osama bin Laden’s driver, Salim Hamdan, at Guantánamo when a military jury convicted Hamdan of “providing material support for terror.” A federal court since overturned that conviction on a different ex post facto argument — providing material support for terror wasn’t a war crime until 2006, when Congress created the first military commissions. Hamdan was captured in Afghanistan in 2001.

For that same reason, Mizer argued, hearsay should be excluded from the trial of Nashiri. He urged the judge to use traditional court-martial practice. It forbids hearsay.

Prosecutors put the Nashiri team on notice in August of an initial 56 items of hearsay they intended to use at trial. Two are 2002 interrogations of Hamdan at Guantánamo, which he left in 2008.

They also indicated they would use a 2001 FBI interview in Yemen of Fahd al-Quso, who at one point was wanted for the Cole bombing. A CIA drone strike killed him in 2012, six months after Nashiri was arraigned.

Mizer argued Friday that “by allowing hearsay, you really have lowered the burden of proof, because in a federal court or a court-martial, it certainly wouldn't be sufficient proof.”

In their August filing, prosecutors defended the integrity of the 2009 hearsay exception as sufficiently “evolved to preclude injustices of the sort that plagued the trial of Sir Walter Raleigh.”

Congress intentionally created the procedure for the war court, prosecutors wrote, recognizing that “organized and irregular groups that engage in armed conflict against the United States and purposely plot overseas, in ungoverned spaces, and behind international boundaries, should not benefit from the unavailability of witnesses at trial.”

Read more Guantánamo stories from the Miami Herald

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In this image from video, Eugene R. Fidell, the lawyer representing Sgt. Bowe Bergdahl said Wednesday, July 16, 2014, in an interview with The Associated Press that his client has been vilified by some people, but the public should not leap to conclusions before the Army finishes its investigation into how and why the soldier left his post in Afghanistan before being captured by the Taliban.

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Miami Herald

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