The Pentagon official overseeing the Guantanamo tribunal tried to rig the jury selection process to boost the odds of obtaining a death sentence for a prisoner accused of directing a deadly attack on a U.S. warship, defense lawyers alleged on Thursday.
They asked the judge to drop the charges against Saudi defendant Abd al Rahim al Nashiri, an alleged al Qaeda chieftain who is accused of choosing and supplying the suicide bombers who drove a boat full of explosives into the side of the USS Cole off the coast of Yemen in 2000. The blast killed 17 sailors and wounded dozens more.
The judge, Army Colonel James Pohl, did not rule on the request before a pretrial hearing ended on Thursday at the Guantanamo Bay U.S. Naval Base.
But he suggested that if there has been an attempt to exert improper influence, the remedy would be to follow regular U.S. court-martial procedures for jury selection rather than dismiss the charges.
The defense complaints focused on retired Vice Admiral Bruce MacDonald, the Pentagon appointee overseeing the war crimes tribunals. He decides which cases are referred to trial, whether defendants will face the death penalty, and which military officers will make up the jury pool.
When he referred Nashiri's case for trial on capital charges that include murder, attempted murder and terrorism, he included specific instructions on how the judge was to carry out jury selection, something the defense characterized as unprecedented bureaucratic meddling in matters usually left to the trial judge.
MacDonald limited the number of challenges the lawyers could use to dismiss jury candidates, and capped the number of jurors at 12.
A conviction and death sentence would require unanimous decisions by at least 12 jurors, so U.S. military courts typically empanel 14 or 15 to make sure they do not drop below the quorum if someone gets sick or has to drop out during a long trial, said Lieutenant Commander Stephen Reyes, one of Nashiri's lawyers.
MacDonald's instructions allow for the selection of alternate jurors who would not vote unless the panel was reduced to fewer than 12, thus keeping to an absolute minimum the number of jurors the prosecution would have to win over.
"That is a panel that numerically favors a death sentence," Reyes said.
The chief prosecutor, Brigadier General Mark Martins, disputed there was anything improper or prejudicial and said MacDonald was merely exercising the authority given to him.
KANGAROO COURT, DASTARDLY DEFENDANT
Defense lawyers also asked that the charges be thrown out on grounds that MacDonald was improperly appointed. They said he had so much authority - and no boss - that the appointment should have required Senate approval.
The judge didn't rule on that request either but he did shed a little light on what happened during a closed-hearing on Wednesday. The defense had asked that the prosecution be ordered to turn over secret evidence related to Nashiri's arrest in Dubai in 2002 and his four-year detention in secret CIA prisons before his transfer to Guantanamo in 2006.
Pohl met privately with the lawyers to debate whether that could be discussed in open court without revealing national secrets. He said Thursday that he had postponed arguments on the matter until the next pretrial hearing, which starts on October 23.
The defense has regularly called the Guantanamo tribunals unfair and defense attorney Rick Kammen, who calls them a kangaroo court, wears a golden kangaroo pin on his lapel.
The long delay in bringing Nashiri to trial and the defense criticism of the tribunal have infuriated relatives and sailors who lost loved ones and colleagues in the attack on the Cole.
A small group has made repeated trips to the remote Guantanamo base to attend Nashiri's pretrial hearings. Some spoke to journalists after the hearing.
Saundra Flanagan, whose son Petty Officer 1st Class Kevin Rux was killed aboard the Cole, called the defendant and his alleged al Qaeda conspirators "damn dastardly, cruel and mean."
She said it may take a while longer to see justice done but "we'll be there waiting and watching and listening and praying for the best outcome."
Source: Reuters, July 20, 2012
War court: Accused planner of attack on USS Cole shuns Guantánamo court session
The accused architect of al-Qaida’s USS Cole bombing skipped arguments in his war crimes case Thursday, a day after both the public and the accused were excluded from a hearing that discussed CIA intelligence.
All defense counsel Richard Kammen would say was that Saudi national Abd al Rahim al Nashiri “voluntarily chose not to attend.” So guards did not move him from his cell at the prison several miles away to the court at Camp Justice.
In all his earlier hearings, the man who was once waterboarded by CIA agents showed up and watched the proceedings wearing the white prison camp garb of a cooperative captive. But there was no explanation for his absence this time. Kammen said he was barred from elaborating by the intelligence agencies’ security rules governing the “presumptive classification” of anything an ex-CIA captive says.
Instead, the defendant’s chair sat empty as the judge, Army Col. James Pohl, heard Nashiri’s lawyers argue to get the case dismissed, and if not get the eventual death-penalty trial available for live television broadcasts. Pohl did not rule on any of the motions.
The judge did however start the day by announcing that at the closed hearing a day earlier it was decided to postpone until next time — Oct. 23-25 — arguments on 2 secret defense motions that seek some sort of information about Nashiri’s overseas capture and detention. But the motions are under seal, and the judge said that he had the authority to close Wednesday’s hearing without elaborating on the open-court record.
“No finding justifying closure was required,” he said.
Nashiri spent 4 years in the CIA’s secret overseas prison network before his transfer to military custody in Guantánamo in 2006. According to declassified investigations, U.S. agents interrogated him at gunpoint, with a revving power drill to his head and while hooded — techniques his defense team considers torture.
Attorneys for 14 media organizations objected to closure of discussions of those motions, arguing the public has a keen interest in Guantánamo’s 1st death-penalty tribunal.
With this week’s hearing over, the Guantánamo war crimes court went dark for the month of Ramadan. Muslims were to begin fasting by day Friday in observance of Islam’s holy month, and end days before resumption of hearings in the 9/11 terror case on Aug.22.
Source: Miami Herald, July 20, 2012
Lawyers ask for Guantanamo trial to be televised
Lawyers for the alleged Al-Qaeda mastermind of the deadly 2000 attack on the USS Cole demanded Thursday that his Guantanamo military tribunal be televised.
Abd al-Rahim al-Nashiri's trial at the US naval base at Guantanamo Bay, Cuba is the first since the military tribunal system was reformed by President Barack Obama's administration to make it fairer.
But there were howls of protest from defense lawyers and media outlets when Wednesday's pre-trial hearing was held behind closed doors and without the defendant -- who was barred due to the classified nature of proceedings.
Now Nashiri's defense attorney, Richard Kammen, is calling for the trial to be televised.
"We don't request any greater intrusion in the system than already exists. We require additional cable connection," he said. "We want to increase the transparency, so a great amount of the public can see this event of national and worldwide interest."
Al-Qaeda claimed responsibility for the suicide attack off the coast of Yemen, which saw militants riding an explosives-laden skiff blow a 30-by-30-foot (10-by-10-meter) hole in the USS Cole, a US Navy destroyer.
Nashiri, a Saudi citizen, faces the death penalty for allegedly masterminding the bombing in October 2000 that left 17 sailors dead, and for a 2002 attack on the French oil tanker MV Limburg that left one dead.
Guantanamo military trials can be watched by journalists and victims' families who have authorization via a live closed-circuit broadcast at Fort Meade, a military base in the eastern US state of Maryland.
"You have adopted a legal fiction... that Fort Meade is an extension of the courtroom," Kammen told military judge, Colonel James Pohl. "Prosecutors say they want a greater transparency. Let's take them at their word."
But prosecutor Justin Sher argued against the move, saying some "witnesses may be reluctant to testify" if hearings are televised and pointing out that transcripts would be available anyway on the tribunal's website.
Pohl is slated to make his decision before the next pre-trial hearings that run from October 23 to 25.
The judge declined to recuse himself on Monday from presiding over the case after Nashiri's lawyers cited a potential financial conflict of interest due to the nature of his annual renewable contract with military authorities.
After being barred on Wednesday, Nashiri was free to attend Thursday's hearing but chose not to.
Source: Agence France-Presse, July 20, 2012