USS Cole defense lawyers argue against capital case at Guantánamo with secret evidence

Defense lawyers in the USS Cole bombing case asked the judge Monday to strip the trial jury of the power to hand down a death sentence because the accused mastermind can’t see secret evidence in his case.

In an illustration of the issue, the accused bomber, Abd al Rahim al Nashiri, could only hear part of the argument in open court. The judge, Army Col. James L. Pohl, ordered lawyers to resume their arguments in secret session Tuesday — with the public and accused Saudi terrorist excluded — to prevent disclosures that could “pose a grave danger to national security.”

Tuesday’s will be the third classified pretrial hearing in the case of Nashiri, 49, who is accused of orchestrating al-Qaida’s suicide bombing of the $1 billion warship off Yemen in October 2000. Seventeen sailors were killed in the attack; the prosecutor wants him executed, if convicted.

But his death-penalty defender, Rick Kammen, said the Guantánamo war court structure denies Nashiri the U.S. constitutional right to an effective assistance of counsel. Nashiri can’t guide his legal defense, Kammen said, if he can’t see all the evidence against him. And, because it’s a national security trial, defense lawyers are forbidden to show the accused terrorist anything marked “Secret” — especially information about the four years he spent in CIA custody, at one point being waterboarded by U.S. agents, because doesn’t have a security clearance.

Kammen called it a “crossroads” moment for Nashiri’s judge, who’s responsible to be “the bulwark” that protects Nashiri’s rights.

“Because if he does not have effective lawyers, if all he has is folks in uniforms and suits sitting there, you know, this is just a Potemkin village, this is just a façade without any real meaning,” he said.

A civilian case prosecutor, Justin Sher, disputed the thesis. The prosecution would not use classified evidence at the trial itself, he said, and nearly all the classified information Nashiri’s lawyers had gotten was at their request, because they have security clearances.

Sher quantified the classified disclosure at 14 percent of the pretrial discovery; Kammen said it was more than that.

“The government is not going to rely on classified information,” he said.

Sher argued that Kammen and four uniformed military defense counsel got most of the classified information because they specifically asked for the state secrets, not because the Pentagon prosecutor offered it them. Those lawyers have security clearances and are forbidden to discuss secret information with Nashiri — unless he happens to already know it from his personal experiences, and voluntarily mentions it without his lawyers probing.

Nashiri, said Sher, “can access all of the discovery that's not classified, and only 14 percent of what's produced is classified. And the accused can talk, again, with his attorneys about whatever information he knows.”

To which Kammen retorted: “You can't exclude 14 percent of the case from pretrial preparation, from meaningful trial preparation, and still try and kill this guy.”

Nashiri appeared to listen intently to an Arabic translator through a headset. He wore his typical war court attire —the white prison camp uniform of a complaint captive, topped by a suit jacket.

To provide an adequate death-penalty defense, Kammen said, lawyers need to show Nashiri and discuss with him every bit of discovery in the case so he can guide them. Additionally, Kammen posed, what happens if he wants to invoke classified information while cross-examining a trial witness? The prosecutor said Nashiri would not be excluded from his own trial, and the government would devise a work-around.

Kammen added that he would amplify at Tuesday’s secret session. But, for the record, he added, Nashiri objected to being excluded from it.

Sher said the provision that prohibits a defendant from seeing all the evidence against him is similar to those at federal national-security trials. He cited the 2003-06 capital trial of suspected “20th hijacker” Zacarias Moussaoui — to which Kammen retorted that the judge at one point struck the possibility of the death penalty after discovering the CIA had “lied” about “whether videotapes of torture had existed.”

There were videotapes at the time of the trial; the CIA later destroyed them.

Moussaoui for a time acted as his own attorney, even though he couldn’t see classified evidence. In the end, the jury did have the option of choosing execution but gave him a life sentence instead.

A key issue that has pervaded Nashiri’s pretrial hearings is his lawyers’ efforts to uncover classified details about his four years in secret CIA custody. In a bid to break him, to get him to spill al-Qaida’s secrets, agents waterboarded and interrogated him nude, threatened him with a revving power drill and made threats to rape his mother among a list of harsh, now forbidden interrogation techniques.

His lawyers want the information both to perhaps challenge unclassified evidence against him as tainted and also to argue he deserves leniency because of his pretrial treatment.