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ByDonna Miles, American Forces Press Service
FT.MEADE, Md. (NNS) -- Pre-trial hearings for the alleged bomber of the USS Coleopened Feb. 4 at Naval Station Guantanamo Bay, Cuba, and encountered issuesfrom both the prosecution and defense that threatened more delays.
Thefirst of four days of pre-trial hearings in the government's case against Abdal Rahim Hussein Mohammed Abdu al-Nashiri opened with the defense asking for apostponement over concerns that third-party monitoring could spill over toconfidential attorney-client communications.
ArmyCol. James L. Pohl, the commission judge, denied the request by Navy Lt. Cmdr.Stephen Reyes, saying it was based on unsubstantiated suspicion. The judgeupheld prosecutor Anthony Mattivi's argument that the defense bears the burdenof proving such allegations and said in his ruling that lacking such proof, thetrial will go on.
Thedebate stemmed from an incident last week during pre-trial hearings for fivedefendants charged with orchestrating the 9/11 terrorist attacks.
Duringthe Jan. 28 hearing, an unnamed "original classification authority"activated a censor button in the courtroom. The button set off a flashingwarning light and blocked about two minutes of audio for everyone observing theproceedings via closed-circuit TV, as well as for media, who sit behindsoundproof glass in the courtroom.
Theincident caught Pohl and others by surprise, and he ruled last week that in thefuture, only he will have the authority to block audio feeds believed tocontain classified information. But Reyes told Pohl Feb. 4 the incident openeda Pandora's Box that needs resolution.
"Wecan't ignore the man behind the curtain," he said, because it is unclearhow pervasive the monitoring is. Reyes said the defense team must assume that ifa third-party organization is listening in on courtroom activities, it mustalso assume that it's eavesdropping on other activities, including privilegeddiscussions between defense lawyers and their client.
"Wesee a tremendous ethical issue here," Reyes said. Until these questionsare answered, he said there is no way to effectively defend Nashiri. Civiliandefense counsel Richard Kammen told the judge he would not meet with his clientoutside the courtroom until this issue is resolved.
Toaddress these concerns, Pohl suggested that all microphones at empty deskswithin the courtroom, as well as at the defense table, be "rippedout" and that attorneys address the court only from the podium. He didnot, however, order the removal.
ArmyBrig. Gen. Mark Martins, chief prosecutor in the Office of MilitaryCommissions, denied any insinuation that the prosecution is listening in on orhas any access to privileged communication between the defense and defendant.
Theprosecution "actively avoids the confidential communications between anaccused and his counsel," he wrote in a statement released today."This is part of our professional responsibilities and our oaths to servejustice. No one has ever asserted a substantive or credible allegation that theprosecution listens to such communications."
AfterPohl's ruling, Reyes asked for a three-hour delay to consult with other membersof the defense team. The judge approved the request but chided Reyes for notbeing prepared to move forward and said all parties should be prepared to do soin the future, regardless of how he rules on their motions.
Butthe government's case against Nashiri encountered another potential delay asdiscussion turned to Nashiri's mental competence. Much of today's hearingdelved into whether he should be evaluated before the trial goes forward, andby whom.
Theprosecution challenged the defense claim that Nashiri suffers from long-termpost-traumatic stress disorder allegedly caused by CIA torture before he wastransferred to Guantanamo Bay. Navy Cmdr. Andrea Lockhart asked Pohl to order amental health board to evaluate Nashiri and determine the validity of thisclaim. Kammen questioned what such an assessment would provide, telling Pohl helacks faith in whatever "hacks" the convening authority might appointto conduct it.
Thejudge authorized a mental health exam. But before it is conducted, he grantedthe defense's request that Dr. Vincent Iacopino, a member of the Physicians forHuman Rights organization, be called on to provide advice on how to conduct itwithout "doing harm."
Iacopinois expected to testify within the next day or two. Pohl said he would not takeup other legal and administrative issues surrounding the case until after themental-health assessment is complete.
Theprosecution asked the judge today to clarify previous rulings that give Nashirithe right to skip court sessions if he chooses, while also allowing him tochange his mind during a day's proceedings and be transported to the hearing.
Thedefense team also requested that Nashiri not be restrained with belly chainswhen he is moved within the detention facility. Defense attorneys said thechains could bring up past trauma from the period when Nashiri was allegedlyrestrained while he was tortured.
Prosecutorsraised concern that eliminating current security safeguards could threaten thesafety of others, including the guard force.
Nashiri,who appeared in court in a traditional white tunic and wore headphones tofollow the translated proceedings, is the alleged mastermind behind the attackoff the Yemeni coast that killed 17 sailors. He is charged with perfidy, murderin violation of the law of war, attempted murder in violation of the law ofwar, terrorism, conspiracy, intentionally causing serious bodily injury,attacking civilians, attacking civilian objects and hazarding a vessel.
Thecharges arise out of an attempted attack on the USS The Sullivans in January2000, the actual attack on the USS Cole in October 2000, and an attack on themotor vessel Limburg - a civilian oil tanker - in October 2002.
Nashiriis a Saudi-born member of al-Qaida. U.S. officials allege he was under thepersonal supervision of Osama bin Laden, and that bin Laden personally approvedthe attacks on the U.S. Navy ships.
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