Prosecution gets new delay in USS Cole proceedings

Saudi Abd al Rahim al Nashiri during his military commissions arraignment at the Guantánamo Nov. 9, 2011.
Saudi Abd al Rahim al Nashiri during his military commissions arraignment at the Guantánamo Nov. 9, 2011. ASSOCIATED PRESS

Expect more indefinite delays in the already mostly frozen Guantánamo death-penalty trial of the Saudi man accused of orchestrating al-Qaida’s 2000 bombing of the USS Cole warship off Yemen.

U.S. military prosecutors sought, and a Pentagon appeals panel agreed, to delay hearing an overarching question of whether Abd al Rahim al Nashiri, 50, can not only be charged with the terror attack on the U.S. Navy destroyer that killed 17 American sailors but also a 2002 bombing of a French oil tanker the Limburg.

The judge in the case, Air Force Col. Vance Spath, had thrown out the Limburg charges and prosecutors want a Pentagon panel of civilian and military judges to reinstate them. Nashiri prosecutors are also appealing a decision by Spath to limit the scope of the USS Cole charges.

First, however, on the advice of the civilian U.S. Court of Appeals for the District of Columbia Circuit, which would ultimately review any Nashiri conviction, the prosecutors are considering whether to ask Congress to tweak the Military Commissions Act that created the Guantánamo war court with respect to how U.S. military judges serve on a Pentagon appeals panel.

The Pentagon panel, called the U.S. Court of Military Commissions Review, is a hybrid of civilian judges approved by Congress and U.S. military judges who were added to the panel by the Secretary of Defense. Nashiri’s lawyers call that composition unconstitutional, saying Congress must approve all judges under The Constitution’s Appointments Clause.

Earlier this month, the U.S. Court of Appeals for the District of Columbia Circuit said it would not decide that Appointments Clause challenge until after Nashiri’s case was over, and if he’s convicted. But it recommended the Obama administrative preemptively fix the law to make the war court panel consistent with the Appointments Clause.

Friday, the war court prosecutor sought and won a delay on its case at the Military Commissions Review court “while it explores options for re-nomination and re-confirmation of the military judges as U.S.C.M.C.R. judges,” the order issuing the stay said.

Separately, Nashiri’s capital defense attorney, Richard Kammen, said Monday that as part of trial preparation examining Nashiri’s “conditions of confinement” the prosecution should make available photos they discovered of the CIA secret prison program that interrogated Nashiri in the four years before his transfer to Guantánamo in September 2006.

The Washington Post reported that prosecutors recently discovered “a massive cache” of photos of the facilities where CIA agents held their post-9/11 captives as well as naked detainees in transit — but none of the men being interrogated.

“The fact that the prosecution apparently just learned of the existence of 14,000 photographs is quite troubling,” said Kammen, adding that the trial judge more than a year ago ordered release of all photos depicting Nashiri’s conditions of confinement and how he was transferred around the globe from secret prison to secret prison.

Still unclear Monday was whether the war court prosecutor would seek to fix the Military Commissions Act in the current National Defense Authorization Act, which the White House might veto, or through another piece of legislation.

A Pentagon spokeswoman responsible for war court issues, Henrietta Levin, declined to predict on Monday how long the proceedings would be delayed. The trial judge, Spath, has abated the proceedings indefinitely pending the appeal, canceling all future war court sessions in the case at Guantánamo.

Levin also declined to comment on the prosecution discovery of the 14,000 photos. She noted that prosecutors are updating Spath periodically in their “efforts to comply with discovery obligations and judicial orders.”

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