With eastern Cuba under a Hurricane watch, a military judge opened then quickly recessed a pre-trial hearing in the USS Cole bombing case Tuesday with an order to force a boycotting terror suspect to court on Wednesday — “weather permitting.”
At issue is whether Saudi-born captive Abd al Rahim al Nashiri, 47, voluntarily agreed around dawn Tuesday to skip this week’s legal arguments in his death-penalty case as alleged architect of al Qaida’s 2000 suicide bombing of the $1 billion destroyer off Aden, Yemen.
The chief war crimes prosecutor, Army Brig. Gen. Mark Martins, opposes voluntary absence at any rate. But he insisted particularly that Nashiri be brought to court to be advised of his rights and answer questions — even if he won’t agree to leave his prison camp cell peacefully.
Nashiri was charged in November and had for months been cooperative, coming to court and sitting quietly. But his lawyers argue that the way the military brings him to court — shackled and blindfolded — is traumatic and reminds him of the torture he suffered when CIA agents interrogated Nashiri by waterboarding him and holding a gun and drill to his hooded head before he got to Guantánamo in 2006.
His judge, Army Col. James L. Pohl, sent Nashiri’s lawyers to the prison camps Tuesday afternoon to try to coax the captive to court, rather than have him tackled and shackled and forced from his cell.
Pohl allowed five accused Sept. 11 plotters to voluntarily skip their hearings last week, and said he would afford Nashiri the same courtesy. But the general prosecuting the case, Martins, said the judge must record Nashiri’s consent to miss court before sending him back to prison.
Seventeen U.S. sailors were killed in the attack. The Pentagon war crimes prosecutor seeks Nashiri’s execution as its alleged architect.
The dispute stalled legal arguments this week on a range of fundamental issues — from how much defense lawyers can learn on a U.S. drone strike in Yemen in 2002 to when the war on terror began.
But the whole issue might not come to a head Wednesday.
Navy commanders were studying weather charts to see when Hurricane Sandy might strike eastern Cuba and to decide whether to scrap this week’s session. That’s what happened in August as Tropical Storm Isaac formed in the Caribbean.
This time, the threat of Sandy appeared greater. An 11 a.m. National Weather Service track showed Sandy hitting eastern Cuba as a Category 1 hurricane overnight Wednesday, a storm that would at very least require evacuating lawyers, reporters and other war court observers from a crude tent and trailer tent city that houses many war court staff at Camp Justice.
One idea was to shelter legal observers in the gym at the base high school for American sailors’ kids. Another was to move them to guest quarters across Guantánamo Bay before stormy seas prevent the Navy ferry from plying between the Windward and Leeward sides.
Even if the judge decides to recess for just the hurricane, the storm that follows could cause another snag: Camp Justice’s maximum-security courtroom is a prefabricated warehouse-style structure that is encased in eavesdropping-proof metal.
Heavy rains, lawyers say, make court proceedings inside inaudible.
Meantime, Nashiri’s Pentagon paid civilian defense attorney said his client had little incentive to show up at the war court. U.S. policy permits the Pentagon to keep a captive forever, lawyer Richard Kammen reminded, even if he is acquitted of war crimes.
“If he’s going to die in Guantánamo either way, it’s just a question of when,” Kammen said on eve of hearing Monday.
Prosecutors have also argued in court filings that the controversial war court could look bad to outsiders if an accused war criminal is allowed to skip his court session. Or as Nashiri’s Navy defender, Lt. Cmdr. Stephen Reyes, told the judge in court Tuesday: “They need an actor for the theater essentially.”
Martins, the chief prosecutor, retorted that there was “no need for name calling,” and that there were sound legal reasons why Nashiri should sit through the hearings and participate in his defense. If he were convicted, his absence could become an issue at appeal, he said.