Attorneys wrapped up the first hearings in 18 months in the USS Cole bombing case Friday with a series of unresolved pretrial defense team challenges to the war court system and still no trial date.
“Don’t forget about the Cole. A lot have,” said retired Senior Chief Joe Pelly, who was aboard the Navy destroyer on Oct. 12, 2000, the day when al-Qaida attacked the warship off Yemen, killing 17 sailors. “Before there was 9/11, there was 10/12/2000.”
Lawyers for Abd al Rahim al Nashiri, 51, accused of orchestrating the bombing, challenged the war court system on several fronts: They said a Pentagon manual erred when it gave the senior official overseeing the war court both judicial and prosecutorial duties, and invoked a recent U.S. Supreme Court decision that upended a verdict for a similar reason.
Separately, Nashiri’s lawyers also accused the prosecution of colluding with an appeals court in secret emails before restoring charges in the case, an appeal that sidelined hearings for 18 months — something the chief prosecutor Brig. Gen. Mark Martins dismissed as “wild accusations by a disappointed litigant.”
At one point, the case’s new lead prosecutor, Assistant U.S. Attorney Mark Miller of New Orleans, accused defense lawyers of trying to overturn “the entire military commissions system” by questioning the overlapping roles of the so-called Convening Authority for Military Commissions. For example, that senior Pentagon official decides whether a case can go forward, and whether to permit a capital case. The official then also selects a pool of U.S. military officers as potential jurors.
“Don’t look at a single function or responsibility,” Miller cautioned the judge. “Military Commissions is fair, equitable, satisfies any due process concerns.”
The judge, Air Force Col. Vance Spath, ruled on none of these and planned to hold two more weeks of hearings later this year.
Death-penalty defender Rick Kammen described the three-day hearing as “filled with really legal madness that would not occur in any other court,” and said that the trial itself could start in late 2018 or early 2019 in what he called a “probably optimistic” prediction. Kammen, who argues Nashiri can only get a fair trial in federal court, was as usual sporting a kangaroo lapel pin on his suit jacket to register his disgust with the system.
The judge offered no similar prediction. Neither did the chief prosecutor, Martins, who at a closing press conference looked straight into an Army journalist’s camera and addressed families of the Cole victims: “Know that our hearts go out to you.”
Attorneys also met with the judge in a closed session to discuss whether to have a classified hearing on topics that delved into something about the CIA’s secret prison network, known as Black Sites, where agents waterboarded Nashiri, and kept him nude and kenneled during interrogations in the four years after his capture. The so-called Senate Torture Report on the secret prison system showed that at one point the CIA pumped Ensure nutritional supplement into his rectum while he was on a hunger strike before President George W. Bush had him delivered to Guantánamo 10 years ago for trial.
One issue was related to the 9/11 case revelation that the chief war court judge, Army Col. James L. Pohl, agreed to the dismantlement of an unidentified former Black Site at a time when lawyers believed the decommissioned CIA prison was under a protection order.
In court Friday, prosecutor Martins said he expected his team would deliver all evidence they believe the defense is entitled to get to either Nashiri’s lawyers or the judge under a substitution or redaction system by month’s end. Then Spath has to go through what Martins described as “multiple thousands” of pages to see if information the prosecutors are withholding on national security grounds presents any disadvantages for defense lawyers.
In those instances, as described in court, the judge returns material with information he rules must be included — for prosecutors to take to security officials, typically the CIA, to seek permission to disclose it. Nobody would offer a timetable for that process, after which the defense attorneys dig into the material and can litigate for information they believe is missing.
Two senior sailors who survived the Cole bombing off Aden, Yemen, by two suicide bombers on a skiff laden with explosives, and the parents of two sailors who died were on hand to watch the proceedings. Several expressed annoyance that much of the hearing was taken up with efforts by Nashiri’s side to expand the defense team for trial preparation and other pretrial moves they saw as stalling tactics.
Sharon Pelly, whose husband emotionally told reporters that he still suffers Post Traumatic Stress from the attack, said she was tired of the defense argument that the war court was the wrong venue. “They want traffic court?” she asked.