When is a spiral-bound notebook a possible weapon? And who gets to decide?
Defense and prosecution attorneys parried with the war court’s chief judge on this for about a half-hour Tuesday in a pre-trial hearing in the death penalty case of a Saudi Arabian prisoner.
Abd al Rahim al Nashiri, 48, is accused of being the architect of al Qaida’s suicide bombing of the USS Cole destroyer off Yemen a dozen years ago. Seventeen sailors were killed and many more were wounded — and Tuesday morning’s hearings focused on which witnesses defense attorneys would be allowed to testify at the war court as they argue that the military meddles in the attorney-client relationship.
Defense attorney Rick Kammen said that, after years of carrying spiral notebooks to client meetings, the prison camps suddenly banned them. He asked the judge to order the camps’ commander to authorize the notebooks, as well as pens and eyeglasses, protesting “frankly arbitrary and nonsensical” restrictions by the current guard force.
Protecting their use of pens was particularly relevant, he argued, before the prison declares, “They’ve got to write in crayon.”
A case prosecutor, Marine Maj. Christopher Ruge, replied that it’s not the judge’s job to interfere with the operations of the prison camps that as of Tuesday held 166 prisoners, 104 of them on hunger strike over both conditions and a failure to resolve their fate.
The Marine lawyer also argued that the spiral in the notebook was a wire that could be used as a weapon. Putting papers inside a three-hole punch would be better, he said.
The judge, Army Col. James Pohl, appeared alternately annoyed and interested. He asked the defense lawyer whether guards could check his notebooks for wires after each meeting. Kammen said he wouldn’t object to that.
Then he asked the prosecutor whether the prison could actually use his order, which mostly focuses on protecting classified information and legal mail, to ban a pen.
Yes, replied Ruge, noting that the order allowed the prison camps commander to define “physical contraband.”
In the end, the judge ruled for the defense and said Kammen could question the Guantánamo guard force commander, Army Col. John V. Bogdan, later this week on the spiral notebook restriction during testimony about the prison camps’ eavesdropping capabilities and policies.
Parents and victims of the bombings brought to this base to watch the proceedings expressed disappointment and dismay.
“They need to stop the stalling tactics and just go ahead and litigate the case,” said Ronald Francis of North Carolina. His 19-year-old sailor daughter, Lakeina Monique, worked in the ship’s mess hall and was killed when two suicide bombers sailed an explosives laden skiff alongside Cole and blew themselves up Oct. 12, 2000 in Yemen’s Aden harbor.
John Clodfelter, whose Navy Petty Officer son Kenneth, 21, was killed in the attack added: "It's just asinine. It's taken 13 years."
These pre-trial hearings, heard only by the judge, set the conditions for the eventual trial before a jury of U.S. military officers.
Later in the day, the judge heard a defense bid to narrow the use of hearsay at Nashiri’s eventual trial to the rare exception allowed in federal court. The chief prosecutor, Army Brig. Gen. Mark Martins, argued that Congress allowed wider use of it at the war court and the judge should not offer an advisory opinion but consider each piece of testimony on a case-by-case basis.
Kammen framed the issue around the possibility that prosecutors might use at trial a 2001 FBI interview in Yemen with Fahd Quso, also blamed for the Cole bombing. He was killed in a drone strike last year.
“Can the United States still kill witnesses and then use their hearsay evidence?” he said.
The judge did not rule but appeared inclined to adopt the prosecutor’s argument that the issue is not ripe.
Veteran war court journalists are familiar with the notebook issue.
Military escorts have at times banned journalists from carrying their trademark reporters notebook to military commission hearings — and ordered them to carry legal pads instead.
Security guards explained that, were an accused terrorist to separate a scribe from his or her notebook, he could un-spiral it and use the wire as a weapon.
Reporters protested, arguing that they area physically separated from the court itself by a wall and soundproof glass. So the Pentagon reversed the restrictions and reporters can now bring their notebooks to court.