The military judge in the USS Cole death-penalty case on Friday rejected the accused terrorist’s bid to spend nights at Camp Justice because the commute from his clandestine prison lock-up makes him sick.
Judge Vance Spath agreed that Saudi captive Abd al Rahim al Nashiri, 52, suffers from motion sickness. But the Air Force colonel announced he would issue a written ruling that sides with the military, even if some security concerns voiced in a closed session last year “seemed more fanciful in worry than realistic.”
Lead case prosecutor Mark Miller, on loan from the Justice Department, defended the honor of the U.S. military devising security protocols, saying that perhaps just one extra security measure would have stopped the Sept. 11 attacks or the suicide bombing of the USS Cole warship on Oct. 12, 2000, off the coast of Yemen.
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Seventeen U.S. sailors died in that attack and Nashiri is charged with orchestrating it. No trial date has been set as the judge and lawyers work through pretrial issues, which Friday touched on how a witness could testify voluntarily if he’d been tortured first, even years before.
Nashiri spent four years in CIA custody, and his lawyers say the trip between the secret Camp 7 and the crude court compound makes him sick, in part because the conditions of his commute remind him of his rendition around the world. In addition, a U.S. medical panel diagnosed him as suffering complex post traumatic stress disorder and depression.
An Army doctor who treated him until recently said Nashiri suffers from routine motion sickness. The officer, an internist, said he knows nothing about his CIA treatment but could treat it anyway. He prescribed him one medicine for motion sickness, another for nausea and said one way Nashiri could combat the problem would be to look out a window — something that’s not possible because guards transport captives in windowless vans.
Even if he could recommend it, the doctor said, he would not because security is paramount at the 41-captive detention center with a 1,650-member military and civilian staff.
Defense lawyers argued in their sleepover filing that the Saudi has to choose between being lethargic at court because of the drugs or feeling nauseous — no choice somebody facing the possibility of execution should have to make.
Earlier this week, defense attorney Rosa Eliades said, he “was vomiting all over the place” after one trip. A prosecutor explained that his usual transport van was broken and something different was used.
Spath jousted with attorneys on his authority to order that Nashiri spend his nights at the so-called Expeditionary Legal Complex, which has five Federal Bureau of Prison-style holding cells in back. He made clear that he would defer to what he heard last year in the closed session from the warden, Army Col. Steve Gabavics, no matter how “fanciful” some of it seemed.
But if the Saudi captive continued to be sick the judge said he might fashion a remedy of his own to make sure the accused terrorist is fit, alert and capable of working with his lawyers.
One idea he floated was holding trial just three days a week, from noon to 8 p.m. on Monday, Wednesday and Friday. That way, Spath said, the prison could deliver Nashiri early in the morning, let him sleep off his nausea or lethargy in the holding cell and be returned to the clandestine Camp 7 compound late that night. Tuesdays and Thursdays would be days off.
Defense lawyers had at one point planned to have Nashiri testify in open court about the condition. Prosecutors wanted the Saudi to do it in closed session, something a consortium of 15 news organizations opposed in a Jan. 19 war court filing.
Once Spath announced in court Friday that he agreed with Nashiri, that he suffers from motion sickness, defense attorney Rick Kammen said his testimony on that topic was unnecessary.