USS Cole lawyers, judge hold secret session on impact of secrecy

A military judge held a closed hearing Tuesday to let USS Cole case lawyers invoke classified information in their argument over whether war court secrecy means the jury should lose the power to hand down a death penalty.

The 70-minute secret session was a continuation of a hearing held in open court Monday. Defense attorney Rick Kammen argued that the national security rules here hobbled his ability to fully consult with the accused terrorist.

For the prosecution, Justin Sher, said the government would use no classified information as evidence at the trial of Saudi Abd al Rahim al Nashiri, 49, accused of orchestrating al-Qaida’s suicide bombing of the warship off Yemen.

Seventeen U.S. sailors died in the attack, and the prosecutor wants Nashiri executed if he’s convicted. Defense lawyers spent six days arguing for dismissal of the case, or alternatively that his jury of U.S. military officers should at most be authorized to impose a penalty of life in prison.

In open court Monday, Sher said only 14 percent of the pre-trial evidence, called discovery, was classified. National security rules bar defense attorneys from showing it to Nashiri or discussing it with him, Sher said, unless Nashiri happens to know the information independently and mentions it.

Kammen argued that defense lawyers have an obligation to share all evidence with their clients, and let the accused shape the defense.

“The Sixth Amendment doesn't say the accused has a right to 86 percent of a lawyer. It says he has a right to a lawyer,” Kammen told the judge. “What kind of lawyer says, ‘I'm just not going to tell you about 15 percent of the case?’ ’’

Nashiri himself brought the proceedings to a halt for two days last week, and protested his frustration over restrictions on his lawyers.

Sher said the judge would have to shape a solution to defense attorneys’ efforts to invoke classified information in cross-examination or at a sentencing hearing.

At issue is the four years Nashiri spent in overseas CIA prisons before he got to Guantánamo in 2006. Defense lawyers argue those years taint the trial evidence. He was interrogated nude and hooded with a revving power drill to his head, and, at one point, waterboarded. Prosecutors apparently won’t use the fruits of those interrogations but defense lawyers want to cross-examine witnesses on how they know what they know.

Tuesday’s closed hearing was the second in seven days of hearings — and the third overall in USS Cole trial preparation.

Lawyers also met with the judge in closed session Saturday on a bid by the Nashiri team to force the government to divulge information about the CIA’s now-defunct “black site” lockups where waterboarding was sanctioned. The court has yet to release a redacted transcript of that 111-minute secret session.

These February hearings were mostly devoted to defense arguments that sought to narrow the case on a range of constitutional and jurisdictional issues. At one point, Navy Cmdr. Brian Mizer, Nashiri’s defender, argued that the USS Cole was a legitimate target for al-Qaida the day it was struck off Aden, Yemen, Oct. 12, 2000 and therefore the attack was not a war crime. The judge has yet to rule.

In other arguments:

• The lead prosecutor, Navy Cmdr. Andrea Lockhart, sought court permission to have a federal lab DNA test four hairs “found at a location in Yemen.” Defense lawyers asked to have an expert participate. The judge has yet to rule.

• Defense lawyers asked the judge to permit testimony from a torture expert, Dr. Sondra Crosby, as well as the Guantánamo prison warden, Army Col. John Bogdan, at the next hearing in April. At issue in that instance is whether the accused terrorist has been getting adequate medical treatment since a U.S. military panel

diagnosed him

over the summer as suffering Post Traumatic Stress Disorder. The judge has yet to rule.

• Both sides haggled over whether there would be enough pretrial preparation to keep a Sept. 2 jury selection date. Separately, defense lawyers asked to move the trial to Norfolk, Va., the Cole’s home port, and prosecutor Lt. Bryan Davis said Guantánamo was a fair, viable location. The judge questioned whether Congressional restrictions even made a change of venue possible.

• Defense lawyers, separately, asked the judge to dismiss the lesser-known portion of the Nashiri case that alleges he was also responsible for al-Qaida’s 2002 attack off Yemen of a French-owned oil tanker, the Limburg. A Bulgarian crew member was killed.

Army Brig. Gen. Mark Martins, the prosecutor, argued the war court has jurisdiction in the case because France was an ally in the war on terror at the time and al-Qaida’s attack had impact on the global oil market.

Mizer argued the U.S. had no real stake in the attack in Yemeni waters because the French-owned Limburg was carrying Iranian oil on a Malaysian contract, and a Bulgarian national died.

The Limburg axis may be important to the Nashiri case because last week the prosecution sealed a plea agreement with another captive, Ahmad al Darbi, to testify at any commissions hearings in the next three and a half years in exchange for release to his native Saudi Arabia. Darbi, 39, pleaded guilty to terrorism charges that said he colluded with Nashiri to buy provisions and train operatives, some of which ended up being used in the Limburg attack.

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