In a war court first, the Pentagon on Monday did not transmit a video feed of pretrial proceedings in the USS Cole case to the United States.
Lead case prosecutor Mark Miller told the judge that the official overseeing military commissions pulled the plug on Monday’s secure transmission to U.S. viewing sites for the press and public at a savings of “some $60,000.”
The disclosure illustrates the costs of doing business at the crude compound here called Camp Justice. Proceedings are transmitted by a private Pentagon communications contractor through a secure, presumably unhackable link between Cuba and U.S. military bases.
The Pentagon set up remote-viewing sites at Fort Meade, Maryland, during the Obama administration. Another is in Norfolk, Virginia for victims and family members to watch hearings in the capital prosecution of Saudi captive Abd al Rahim al Nashiri. He’s accused of orchestrating al-Qaida’s 2000 suicide bombing of the warship off Aden, Yemen, that killed 17 sailors.
In court Monday, when Miller has typically notified the judge, Air Force Col. Vance Spath of closed-circuit TV feeds to U.S. sites, the lead case prosecutor disclosed there were none. There was no comment from the judge, who has signed an order authorizing the transmissions as an extension of his court.
Most of this week’s hearing is expected to be closed for the sealed testimony of prosecution trial witness Ahmed al Darbi, a Saudi who pleaded guilty to terror charges in exchange for his repatriation. Prosecutors are capturing his deposition on videotape this week, for possible use at Nashiri’s eventual trial.
Monday’s open hearing lasted three hours and included a discussion of the trial schedule and differing prosecution, judicial and defense interpretations of the admissibility of testimony after torture or coercion. The sides also debated whether Nashiri was obliged to attend the taping of the testimony, and whether the prosecution would be allowed to videotape the defense table as possible trial evidence, something both Nashiri’s lawyers and the judge rejected.
Miller said the war court Convening Authority, Harvey Rishikof, decided to cancel the transmissions “late last week” based on his understanding of how little of this week’s hearings would be open. Since Rishikof took the job in March he has been confronted with a series of resourcing challenges at the austere war court compound.
Among them: How to handle a robust 2018 court calendar and how to get the 9/11 pretrial hearings back on track. The Sept. 11 trial judge has suspended the hearings because the prison commander won’t provide a special segregated boat to bring the judiciary staff across Bay, a sequestration the chief war court judge considers crucial.
For this week’s hearing, Rishikof’s office paid $300 each way for a separate utility boat to ferry Spath and his staff across the bay — apart from lawyers and other trial participants who arrived Sunday on the same air shuttle from the Washington, D.C., area.
Pentagon spokesman Air Force Maj. Ben Sakrisson said by email that Monday was “the first time” that the Office of Military Commissions “did not have the public and media CCTV sites in CONUS open,” using the acronyms for closed circuit television and the continental United States.
“But it is also the first time we have had a week of court where we had advance notice that it would be entirely closed except for administrative matters,” Sakrisson said.
Sakrisson also said Monday that, as a war court judge, Spath has authority to “approve or disapprove the transmission of any military commissions proceedings,” meaning he can forbid transmission beyond the courtroom. But he can’t decide if his hearings are seen beyond the court “since activation of those feeds is paid for by the Convening Authority.”
The prosecutor’s office, meantime, chose not to bring to the base Sunday some shipmates or families members of sailors killed in the Cole bombing as observers, because of the probability that few of this week’s proceedings would be held in open court.
The Pentagon explanation
Below is spokesman Air Force Maj. Ben Sakrisson’s explanation of why, for the first time, an open war court hearing wasn’t broadcast to remote viewing sites in the United States. We spell out the acronyms he used in his email in brackets, to leave a parenthetical remark in parentheses:
“The decision not to transmit this week’s sessions was made based upon the Judge’s Scheduling Order which only listed the closed deposition as a matter to be disposed of. While there may be short open sessions during the week, they are entirely administrative in nature. Therefore, balancing the cost to the taxpayers versus the fact that the content of the hearings would not be substantive, a decision was made to conserve government funds and not schedule transmission of this week’s proceedings.
“This is the first time that OMC (the Office of Military Commissions) did not have the public and media CCTV (closed-circuit television) sites in CONUS (the continental United States) open, but it is also the first time we have had a week of court where we had advance notice that it would be entirely closed except for administrative matters.
“However, media and NGO [non-governmental observer] representatives were still allowed to travel to observe whatever open sessions might occur, since there is little cost incurred because they are accommodated on a flat-fee government flight with billeting in tents.
“The military judge has authority to approve or disapprove the transmission of any military commissions proceedings. While he can prohibit the transmission of any proceedings, he does not generally decide whether the CCTV feeds (other than those required for security purposes) will be activated or not, especially those feeds which provide the transmission to CONUS CCTV locations for the public, media, or victim family members, since activation of those feeds is paid for by the Convening Authority. However, the military judge must be informed when they occur because those locations become an extension of his court room.
“Likewise, if the military judge were to order that a particular session be transmitted, the government would either comply or file a motion for appropriate relief. In this instance, the government verified with the Trial Judiciary, prior to making the decision regarding CCTV transmission, that the only substantive session scheduled for this week was the closed deposition.”