Guantánamo

Admitted terrorist testifies behind closed doors at Guantánamo

The headquarters building of the war court complex called Camp Justice as seen through a broken window at an obsolete air hangar at the U.S. Navy base at Guantánamo Bay, Cuba, on Feb. 28, 2015, in an image approved for release by the U.S. military.
The headquarters building of the war court complex called Camp Justice as seen through a broken window at an obsolete air hangar at the U.S. Navy base at Guantánamo Bay, Cuba, on Feb. 28, 2015, in an image approved for release by the U.S. military. crosenberg@miamiherald.com

A war court judge took off his robe and took on a new role Tuesday, supervising the preservation of testimony from an admitted Saudi terrorist for use at the USS Cole bombing trial in perhaps four or five years.

Air Force Col. Vance Spath, the judge, ruled that the public would not be allowed to watch as long-held Guantánamo captive Ahmed al Darbi, 42, gives his deposition this week inside the maximum-security war court for possible use in the death-penalty trial of Abd al Rahim al Nashiri.

Nashiri is accused of orchestrating al-Qaida’s suicide bombing of the U.S. destroyer off Yemen on Oct. 12, 2000. Seventeen American sailors died, and dozens more were wounded in the bombing.

In a 2014 plea deal to turn government witness, Darbi admitted to getting supplies and helping al-Qaida militants plot suicide bombings of ships in the Arabian Sea. In exchange for the plea, he is due to return to his native Saudi Arabia next year to serve out the remainder of an at-most 15-year prison sentence. The Obama administration struck the testimony-for-release deal, and war court prosecutors say they are confident that Defense Secretary Jim Mattis will honor it.

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“The tragedy of all of this is that the public won’t see as it unfolds,” said Nashiri’s defense attorney, Rick Kammen, who wanted Darbi to testify in open court. Prosecutors opposed it, and the USS Cole case judge agreed to close it. Kammen predicted that, at the pace of progress toward trial, the public might only get to read a transcript, or see portions of the video, “if there’s a trial, which may be as far away as four or five years.”

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Ahmed al Darbi holds a photo of his children while he poses for the International Red Cross in this undated photo at Guantánamo provided to the Miami Herald by his attorneys

Judge Spath has said in court he hopes to at least start jury selection in 2018.

Nashiri, 52, was first charged as Osama bin Laden’s alleged mastermind of Arabian Sea attacks in 2011. But progress toward trial has been slow, in part because of a continuing dispute between defense and prosecution attorneys over access to evidence in the national security case. Spath is refereeing the discovery process, at times approving prosecution summaries of classified information that Nashiri’s lawyers can see, and typically wears a black robe to court in his role as a military commission judge.

On Monday, he announced he’d wear his blue Air Force uniform topped by a sweater because the cavernous war court, built to try six alleged terrorists simultaneously, is chilly. He also notified the lawyers that virtually any questions could be asked of Darbi in the closed deposition, which continues later this year with defense attorneys cross-examining him in a separate session. That’s because only at the trial phase, if Darbi is gone from Guantánamo, will the judge decide which portions, if any, of the videotape can be shown to the jury.

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Col. Vance Spath, chief of the Air Force judiciary, is the judge in Guantánamo’s capital USS Cole bombing case US AIR FORCE

Darbi has said in earlier sworn testimony that he was tortured in U.S. custody, and defense lawyers want the testimony excluded as tainted.

Darbi’s time-capsule testimony is being taken across at least two months, and in two cases. He’ll do another deposition Aug. 14-18 in the non-capital war crimes case against an alleged al-Qaida military commander, Abd al Hadi al Iraqi. But Hadi’s judge, Marine Col. Peter Rubin, has agreed with defense attorneys to let the public watch.

RELATED: Prosecutors want Saudi to ID alleged al-Qaida commander at Guantánamo

Nashiri, who is also a Saudi, was in the courtroom watching Tuesday’s testimony. Attorneys said they were forbidden to provide details. It was, however, the first time the Saudi, who was waterboarded and subjected to other abusive interrogation techniques while in CIA custody from 2002 to 2006 before being sent to Guantánamo, heard court testimony without the public watching.

During Monday’s open session, Nashiri stood chatting amiably with his legal team, a suit jacket atop his white prison uniform, before lawyers held a hearing on how to hold the first known Camp Justice deposition in Guantánamo’s 15-year history.

Prosecutor Air Force Maj. Michael Pierson wanted to have three cameras — two trained on Darbi in the witness stand and a third on Nashiri and his lawyers, as possible trial evidence.

Kammen and the judge rejected the idea, noting that a defendant doesn’t typically attend a deposition. But Nashiri chose to watch, and the prosecutor wanted him there for as many days as it takes.

A mixed military-federal prosecution team was questioning Darbi in English for open-court translation into Arabic. He was replying in Arabic, followed by English translations, monitored by Darbi’s mixed military and civilian defense team. He is represented by two Pentagon-paid attorneys, and Ramzi Kassem, a law professor at the City University of New York.

USS Cole bombing trial guide

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This artist rendering by courtroom artist Janet Hamlin, reviewed by the U.S. military, shows Abd al Rahim al Nashiri during his military commissions arraignment at the U.S. Navy base at Guantánamo Bay, Cuba on Nov. 9, 2011. JANET HAMLIN ASSOCIATED PRESS

Nashiri, 52, was first charged as Osama bin Laden’s alleged mastermind of Arabian Sea attacks in 2011. But progress toward trial has been slow, to trial, in part because of a continuing dispute between defense and prosecution attorneys over access to evidence in the national security case. Spath is refereeing the discovery process, at times approving prosecution summaries of classified information that Nashiri’s lawyers can see, and typically wears a black robe to court in his role as a military commission judge.

Monday, he announced he’d wear his blue Air Force uniform topped by a sweater because the cavernous war court, built to try six alleged terrorists simultaneously, is chilly. He also notified the lawyers that virtually any questions could be asked of Darbi in the closed deposition, which continues later this year with defense attorneys cross-examining him in a separate session. That’s because only at the trial phase, if Darbi is gone from Guantánamo, will the judge decide which portions, if any, of the videotape can be shown to the jury.

Editor’s Note: An earlier version of this story said Ahmed al Darbi’s lawyers were all paid by the Pentagon. His civilian attorney, law professor Ramzi Kassem, said he’s been defending the Saudi “pro bono since 2008.”

Carol Rosenberg: 305-376-3179, @carolrosenberg

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