The judge in charge of the USS Cole case predicted Wednesday that the death-penalty trial could last nine months to a year, then hedged his bets by saying he’s bad at forecasting these things.
Army Col. James L. Pohl, the judge, also said for the first time that although he’s also presiding at pretrial hearings in the Sept. 11 conspiracy case it was “unlikely” that he would preside at both.
Pohl, chief of the war court judiciary, assigned himself to both capital cases, and can reassign either to another military judge. But his remarks were a departure from earlier comment in court that, because Guantánamo has only one courtroom for national-security trials, it was logistically possible to handle both.
The remarks came up in a request by civilian criminal defense attorney Richard Kammen to sequester the 12-member jury of U.S. military officers brought to this remote base for the death-penalty trial of Abd al Rahim al Nashiri, 49, accused of orchestrating al-Qaida’s 2000 suicide bombing of the warship off Yemen.
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Seventeen U.S. service members were killed and dozens more were injured, and the Pentagon prosecutor seeks the Saudi’s execution, if convicted, which could prolong the trial.
Pohl scheduled the trial itself for Dec. 4 but said in court Wednesday that date’s not firm.
One issue looming over the timetable for trial was a sweeping order Pohl issued last week instructing the government to provide Nashiri’s lawyers — in classified fashion so the public can’t know it — closely held details of the CIA’s now defunct secret prison system, called the black sites.
Pohl instructed CIA to provide a chronology of Nashiri’s four-year odyssey through the black sites; detailed cables that asked for and authorized “enhanced interrogation techniques,” including waterboarding; the names of countries where he was hidden from the reach of the International Red Cross, and names of medical personnel who worked on the secret program.
Wednesday, a day after the CIA declined to say whether it would comply, the prosecution filed a legal motion at the war court asking Pohl to reconsider his five-page order.
The prosecution request was still under seal but the title of it on the war court website was intriguing. It suggested the prosecution had already sought declassification of some information the Nashiri defense team needed.
The title also suggested that Pohl’s order was risky, seeking reconsideration to “safeguard national security while ensuring a fair trial.”
In court Wednesday, Kammen argued for a two-fold style of sequestration:
• First that the U.S. military field-grade officers (equivalent to Army major through colonel) not be allowed to go home, possibly to bases and posts across the globe, once they’re picked for jury duty.
Pohl has set Oct. 6 for jury selection in the case, starting with a pool of 37 officers chosen by a senior Pentagon official as suitable to serve. Because the CIA held Nashiri for four years, it’s a national security trial, meaning only officers with Top Secret security clearances can sit in judgment.
• Also that jurors be cut off from the internet and kept apart from everyone else on the 45-square-mile Navy base.
The Pentagon plans to bring to the base USS Cole victims and family members of sailors who were killed. There is tent space for up to 60 journalists. Kammen asked the judge to ensure that the jury not overhear news reports in the base cafeterias or encounter victims.
A case prosecutor, Navy Lt. Bryan Davis, opposed what he called “prison-like conditions” for the jurors.
It became clear from the court discussion that the military was considering letting jurors come and go at strategic times — between jury selection and opening arguments, perhaps for Christmas break or during weeks when the Sept. 11 case judge was hearing pretrial arguments in the five-defendant conspiracy case.
A Pentagon war court spokesman, Army Lt. Col. Todd Breasseale, said such a lengthy trial “would be unlike anything in recent memory,” a length of time comparable to many post-9/11 deployments for some branches of service.