Prosecutors propose to use 72 pieces of hearsay evidence from 66 absent witnesses, a lawyer disclosed at the war court Friday in a bid to block hearsay at the USS Cole bombing trial.
At least one witness was killed in a U.S. drone attack.
“You can't change the rules of evidence after the fact and make it easier to convict someone,” said Navy Cmdr Brian Mizer, a defense lawyer for Abd al Rahim al Nashiri.
Nashiri, 49, is accused of orchestrating the October 2000 warship bombing that killed 17 U.S. sailors. He could be executed if convicted in a military tribunal currently slated to start Sept. 2.
Hearsay use is one of the most controversial aspects of the war court system here because — with rare exceptions — a U.S. defendant has a bedrock constitutional right to confront his accusers. But in 2009, Congress gave the war court more liberal use of hearsay because some witnesses are out of reach of the court, unavailable for cross-examination.
Court records indicate that many, if not all, of the missing witnesses are Yemeni. Many of them were interviewed more than a decade ago as FBI and NCIS agents were hunting who was behind al-Qaida’s bombing of the $1 billion destroyer during a refueling stop off Aden.
The chief prosecutor, Army Brig. Gen. Mark Martins, argued that hearsay evidence is allowed at the war crimes tribunals if a military judge decides that it’s relevant, corroborated and wasn’t coerced.
“Is it in the interest of justice and is there any indication that the will of the declarant is overborne?” Martins told the judge, Army Col. James Pohl, who would decide which hearsay evidence to allow.
But Mizer cast the hearsay exception as inapplicable at the Cole trial because Congress created the rule in 2009, seven years after Nashiri’s capture and nine years after the attack. Rather, he cast it as a rule made up after the fact, ex post facto.
Martins argued that Congress had the authority to change the procedure for evidence at the Guantánamo war court. Besides, he said, it doesn’t create a disadvantage for the defense because they can use hearsay too, if they can show the judge they need it.
Nashiri got to Guantánamo in September 2006 after years in secret CIA lockups where agents waterboarded and interrogated him with other now-banned techniques. Congress adopted the current procedures in 2009.
In 2008, Mizer defended Osama bin Laden’s driver, Salim Hamdan, at Guantánamo when a military jury convicted Hamdan of “providing material support for terror.” A federal court since overturned that conviction on a different ex post facto argument — providing material support for terror wasn’t a war crime until 2006, when Congress created the first military commissions. Hamdan was captured in Afghanistan in 2001.
For that same reason, Mizer argued, hearsay should be excluded from the trial of Nashiri. He urged the judge to use traditional court-martial practice. It forbids hearsay.
Prosecutors put the Nashiri team on notice in August of an initial 56 items of hearsay they intended to use at trial. Two are 2002 interrogations of Hamdan at Guantánamo, which he left in 2008.
They also indicated they would use a 2001 FBI interview in Yemen of Fahd al-Quso, who at one point was wanted for the Cole bombing. A CIA drone strike killed him in 2012, six months after Nashiri was arraigned.
Mizer argued Friday that “by allowing hearsay, you really have lowered the burden of proof, because in a federal court or a court-martial, it certainly wouldn't be sufficient proof.”
In their August filing, prosecutors defended the integrity of the 2009 hearsay exception as sufficiently “evolved to preclude injustices of the sort that plagued the trial of Sir Walter Raleigh.”
Congress intentionally created the procedure for the war court, prosecutors wrote, recognizing that “organized and irregular groups that engage in armed conflict against the United States and purposely plot overseas, in ungoverned spaces, and behind international boundaries, should not benefit from the unavailability of witnesses at trial.”