An Army judge has reset the start of the USS Cole terror trial for next year, a delay attributed to the prosecutor’s effort to shield details of the CIA’s secret detention program from the alleged terrorist’s lawyers.
The judge, Army Col. James L. Pohl, had set the perhaps nine-month death-penalty trial of Saudi prisoner Abd al Rahim al Nashiri to start in December. But a recently unsealed scheduling order switched the trial date to Feb. 9.
At issue is the judge’s April 14 order that the U.S. government is to disclose, in classified fashion, precise details — names, dates, places — of the secret interrogation and detention of Nashiri between his 2002 capture in Dubai and arrival at this remote U.S. Navy base four years later.
The Saudi said to be the mastermind of al-Qaida’s 2000 suicide bombing of the warship was waterboarded by the CIA and subjected to a mock execution, interrogation techniques that his lawyers call torture.
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Prosecutors argue that Pohl doesn’t have the authority to order such sweeping government disclosure. Congress created a system of shielding that information from defense teams, they argue, even attorneys with top secret security clearances.
Pohl is expected to hear arguments on the question this week.
It is unclear how much of the motion for reconsideration will take place in open court. The judge did say in his scheduling order, dated May 9, that the prosecution has already disclosed some of the information covered by his order. Meantime, he called postponement of the trial date until next year “in the interest of justice.”
It’s also unclear whether the trial could actually start in February. Attorneys and the judge have characterized the trial dates as “a mark on the wall” — more theoretical — as they argue about what laws apply at the court and jury selection of U.S. military officers brought in from bases across the globe.
The chief prosecutor, Army Brig. Gen. Mark Martins, released a statement on the eve of Wednesday’s hearing that said, despite the decision to move the trial date “to February of next year, significant work remains underway.”
The general noted that, before this week’s session, the judge had held four closed hearings — and estimated that 5 percent of the case has been closed, with updates issued through redacted transcripts.
The prosecution has argued that if Pohl doesn’t rescind his order and settle for summaries of evidence instead, it might appeal to a Pentagon panel, the U.S. Court of Military Commissions Review.
Meantime, it’s also unclear whether the CIA would comply with the order — and, if so, how long that might take.
Nashiri trial participants arrived at this remote base Tuesday for a three-day hearing designed to set conditions for the eventual trial.
One legal motion on this week’s agenda is a bid by defense attorneys to have the judge disclose any contacts he’s had with the CIA or victims of the attack on the USS Cole off Yemen on Oct. 12, 2000. Seventeen American sailors were killed and dozens more were injured in al-Qaida’s suicide bombing of the warship, and parents of the slain sailors routinely attend the hearings as guests of the prosecution.
Another motion asks the judge to order the government to give defense attorneys a copy of the Senate Select Committee on Intelligence’s so-called “Torture Report,” a massive, classified examination of the CIA’s secret interrogation program — a portion of which the agency is currently reviewing for declassification at the request of the White House.
Nashiri’s defense attorneys want the whole thing.