USS Cole bombing hearing halted at Guantánamo; defendant may fire lawyer

Defense attorney Rick Kammen of Indianapolis sported a kangaroo lapel pin to the court's national security session on Friday, June 14, 2013 at the U.S. Navy base at Guantanamo Bay, Cuba, in a photo approved for release by the U.S. military.
Defense attorney Rick Kammen of Indianapolis sported a kangaroo lapel pin to the court's national security session on Friday, June 14, 2013 at the U.S. Navy base at Guantanamo Bay, Cuba, in a photo approved for release by the U.S. military. MIAMI HERALD

An Army judge abruptly recessed the first military commission session of the year Monday because the alleged architect of al-Qaida’s 2000 USS Cole bombing may want to fire his lawyer.

One-time waterboarded Saudi prisoner Abd al Rahim al Nashiri, 49, is scheduled to face trial in September. The judge, Army Col. James L. Pohl, had scheduled eight days of hearings to address defense and prosecution representation questions and efforts by Nashiri’s lawyers to narrow the case — as well as postponing the trial until at least February 2015.

But Nashiri’s death-penalty defender, Rick Kammen, a civilian, told the judge moments into the hearing that the prisoner had lost confidence in him, and wanted to fire him. He asked for two days to work with the accused on preserving the relationship. Pohl agreed.

He recessed the hearing until Wednesday and said that if the hearings go forward, he will hold Saturday and Sunday sessions to make up for lost time.

Nashiri, who could be executed if convicted as the mastermind of the suicide bombing of the $1 billion warship off Yemen in October 2000, sat silently in the courtroom during the nine-minute hearing.

Seventeen sailors were killed in the attack, and the fathers of three said later that the recess was proof that the United States was bending over backward to give the accused terrorist a fair trial.

“I’ll be here no matter what. We owe this to our son to make sure this happens,” said John Clodfelter, 65, whose sailor son Kenneth, 21, was killed in the blast. He has made the pilgrimage to this remote base in southeastern Cuba for each hearing and declared himself “past disappointed a long time ago.”

Jesse Nieto, 70, whose son Marc, 24, was also killed, echoed long-held sentiment that the accused was engaged in stalling tactics. “Anything he can do to gum up the works, he’s going to do it,” Nieto said.

Defense lawyers say the death penalty and secret nature of the proceedings have prolonged this phase. They also cite Nashiri’s waterboarding and other “torture” in U.S. custody, which they say has left him suffering from Post Traumatic Stress Disorder.

Nashiri’s lawyer spent several hours with the prisoner, and would spend the day with him Tuesday, said Navy Cmdr. Brian Mizer, a veteran military commissions defense attorney who recently joined the USS Cole case.

He declared himself “optimistic that we’re going to proceed on Wednesday,” and said Nashiri was frustrated at the military’s blocking access to two Albuquerque, N.M., attorneys who volunteered to work on his case. One is Nancy Hollander, who had met with him regularly from 2008 to 2012. The other is Ahmad Assed, who has had an application pending to see him for two years, said Mizer.

The larger problem, he said, is Nashiri’s isolation at Guantánamo, where he is held in a secret prison called Camp 7, and has no control over any aspect of his life except to fire his lawyer. Mizer called threatening to dismiss an attorney “a pretty powerful outlet to voice frustrations.”

Under military commissions rules, an accused terrorist facing a possible death penalty must have a “learned” defense counsel on his team. Only Kammen currently qualifies for that role, although Nashiri also had three military defense lawyers at his table for Monday’s hearing.

They included Mizer, who had previously defended Osama bin Laden’s driver, Salim Hamdan, at a military commissions trial, and Army Maj. Tom Hurley, who had previously been part of Army Pfc. Chelsea Manning’s court-martial defense team.

Until Monday, the Saudi prisoner appeared to have a working relationship with Kammen, a seasoned death-penalty defense lawyer from Indianapolis. The two met in 2008, and Nashiri accepted him onto his team. Navy Cmdr. Stephen Reyes, Nashiri’s first Pentagon-approved military lawyer, brought Kammen to the team, and recently left for studies at Harvard.

Hollander, who is not a learned counsel, was at the court Monday as well to protest to the judge that the prison had not let her see her client for a year. But Pohl recessed before that issue was heard. Mizer said the issue appeared to be “retribution” because Hollander was pressing torture claims against the United States in European courts on Nashiri’s behalf.

The United States captured Nashiri two years after the Cole attack. He was held in secret CIA custody overseas, waterboarded and interrogated using other now-banned techniques. President George W. Bush had him moved to Guantánamo for trial in September 2006. He was formally charged with the Cole bombing on Nov. 10, 2011.

Pretrial motions haggle over evidence and legal questions before a military jury is brought to Guantánamo to hear the case.

“As long as I’m living, I’ll be here. I want to see it through,” said Ronald Francis, 58. His 19-year-old sailor daughter Lakeina was killed on the ship as well.

On the eve of the hearings, the chief prosecutor, Army Brig. Gen. Mark Martins, called the prolonged process “an indispensable part of this sharply adversarial process” and “necessary to the fair and open administration of justice.”

Martins himself was expected to be at issue at Monday’s hearing. Mysterious, recent legislation by Congress requires the Pentagon’s chief war crimes prosecutor to be of same rank as the chief defense counsel. But Martins outranks the chief defense counsel, Air Force Col. Karen Mayberry, a problem that could be remedied with a waiver from Secretary of Defense Chuck Hagel, according to a Pentagon spokesman, Army Lt. Col. Todd Breasseale.

Nashiri’s lawyers, who have frequently complained that they are outgunned in resources, filed an emergency motion last week to freeze the proceedings to review Martins’ status. The motion was still under seal at the war court while intelligence agents reviewed the motion’s suitability for the public to read.

On Monday, only Pentagon prosecution lawyers were present at the court, and two Department of Justice attorneys were, inexplicably, no longer part of the team. Gone were Anthony Mattivi, an assistant U.S. attorney in Topeka, Kan., and Joanna Baltes, an expert on classification issues based in Washington, D.C. A document explaining who was officially detailed to the case was under seal at the war court website.

This week’s hearings were expected to recess Thursday to make room at the maximum-security courtroom for the arraignment of another alleged terrorist accused of shopping for boats and navigational systems at Nashiri’s behest. Ahmed al Darbi, 39, and at Guantánamo since August 2002, faces terrorism charges related to the purchases and al-Qaida’s bombing of a French-flagged oil tanker, the Limburg, off the coast of Yemen in October 2002.

It was not immediately known whether the judge in that case, Air Force Col. Mark Allred, would hold the arraignment sooner.

The Darbi prosecution is the fifth non-capital case at the Obama war court, where the previous four arraignments featured plea deals with the defendants agreeing to cooperate with Pentagon prosecutors in exchange for eventual, certain release from Guantánamo.

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