The accused architect of al-Qaida’s USS Cole bombing kept his Pentagon-paid defense team on Wednesday, allowing his attorneys to begin arguing for dismissal of the prosecution that seeks his execution.
Saudi prisoner Abd al Rahim al Nashiri, 49, apologized for the two-day delay. He said he had doubts his lawyers could help him in the case that calls him the mastermind of the October 2000 suicide bombing off Yemen that killed 17 U.S. sailors.
“I believe we are here in a unique and very strange court,” Nashiri told the judge, Army Col. James Pohl, through an interpreter. He was soft-spoken, unshackled and wore the white prison camp uniform of a well-behaved captive.
He complained that he had no Arabic-speaking attorney, that two members of his lawyers were absent and that his lawyers go to secret pretrial hearings and are forbidden to tell him “what happened during those closed, classified sessions.”
The judge noted that those were structural aspects of the war court his defense team had challenged and lost through legal motions.
Many of the almost 40 motions on the hearing agenda seek to dismiss some or all of the charges against Nashiri, who was brought to Guantánamo in September 2006 after years in secret CIA lockups where agents waterboarded and interrogated him with other now-banned techniques.
Army Maj. Thomas Hurley, on the defense team, argued that President George W. Bush’s remarks years ago that called Nashiri the Cole bomber prejudiced the case. He asked Pohl to dismiss the charges or make life in prison the maximum possible punishment at trial.
Navy Lt. Bryan Davis, a prosecutor, said Bush was not trying to contaminate any future trial, but was speaking to the nation during “an ongoing war against terror.” By the time Nashiri was charged, on Oct. 26, 2011, he said, Pentagon statements used the word “alleged.”
Davis invoked the precedent of Lt. William Calley’s 1970s court-martial for the My Lai massacre during the Vietnam War — and said any pretrial publicity could be addressed during the selection of Nashiri’s tribunal of U.S. military officers.
Sunday, the chief prosecutor, Army Brig. Gen. Mark Martins, defended closed court sessions as a balancing act of safeguarding national security “while ensuring that each accused has a meaningful opportunity to challenge the government’s case and that the administration of justice functions in the open.”
In June, the judge closed the court to hear attorneys argue about a government motion so secret it has no name on the Pentagon’s public war court docket. A subsequent, partially released transcript showed the closed hearing included a prosecution admission that the CIA found previously undisclosed photos of Nashiri. Defense lawyers want the photos.
Martins rejected characterizations of the opened-closed nature of the proceedings as “a lazy ‘military commissions pick and choose transparency’ narrative.” Less than 2 percent of Nashiri’s hearings were closed, he said, and “done consistent with our values and in accordance with the rule of law.”
Nashiri could next return to court Friday. The judge closed Thursday’s session to hash out with the lawyers what portions of these hearings could be heard by the accused and the public.