Guantanamo tribunals start again with USS Cole suspect

By Matthew Rusling Nov 9, 2011, 23:39 GMT

Guantanamo Bay, Cuba - The man suspected of masterminding the October 2000 bombing of the USS Cole was arraigned Wednesday in his first appearance in public since his capture nine years ago.

Seated next to his lawyers in a military court at the US naval base at Guantanamo Bay, Saudi-born Abd al-Rahim Hussayn Muhammad al-Nashiri, 46, declined to enter a plea of guilty or not guilty, opting to do so later.

Al-Nashiri, who wore a loose, white prison-issue T-shirt and headphones to hear Arabic translations, was read the charges in connection with his role in the bombing of the US Navy vessel docked off the coast of Yemen.

Seventeen US sailors were killed and 40 more were wounded in the attack, which blew a massive hole in the side of the ship.

His arraignment marked the resumption of the hotly debated military tribunal process, as ordered by US President Barack Obama after a hiatus in which the White House failed to bring the trials into US civilian courts as promised.

Al-Nashiri's case is the first Guantanamo tribunal in which the accused could face the death penalty. His lead defence counsel, Richard Kammen, sought to determine if the judge, Army Colonel James Pohl, favoured the death penalty. But Pohl declined to answer.

Al-Nashiri's arraignment opens the door for upcoming tribunals of such high-level suspects as Khalid Sheikh Mohammed, the self-proclaimed orchestrator of the September 11, 2001, attacks.

During the four-hour court session, defence and prosecution lawyers sparred over alleged violations of attorney-client privilege by military officials, who Kammen charged had seized Nashiri's legal papers from his cell.

A trial date of November 9, 2012, was set by the court, in response to Kammen's request for adequate time to prepare.

The short-haired defendant, sporting a five-o-clock shadow beard and thin mustache, responded with polite smiles when spoken to by Judge Pohl. Told that he was free to wear civilian clothing, al-Nashiri said he preferred the detainee uniform.

Also in court, sitting behind a glass enclosure, were at least seven or eight members of the victims' families, including John Clodfelter of Mechanicsville, Virginia, who told reporters afterwards that his 21-year-old son, Kenneth, had been 'massively' torn up by the bombing.

Clodfelter was dismayed by al-Nashiri's demeanour in court, saying he 'seemed cocky to me' and noting that there was more concern in the courtroom over the defendant's rights than the rights of the victims.

Commander Andrea Lockhart, a member of the prosecution team, read the charges, which included conspiracy to commit terrorism, attacking civilians and violating the law of war.

After his capture, al-Nashiri was subjected to a number of waterboardings, according to documents released in 2009. In 2007, the defendant said he confessed to the Cole attack as a result.

'This is a big part of the case, what happened to Mr Nashiri and how he was treated will certainly be a big part of any penalty phase, should we get to a penalty phase,' Kammen told reporters.

Kammen, a private lawyer, told the judge that he was concerned that his client would not receive a fair trial. Another member of the defence team, military lawyer Colonel Stephen Reyes, complained that officials had seized privileged attorney-client communication documents.

Judge Pohl grilled a member of the Joint Task Force command that runs Guantanamo for details about the seizure. The official said he had been ordered to conduct the inspection.

Kammen had complained to reporters that just two days before the arraignment, 200 pages of new courtroom regulations had been published and that as of Tuesday, his team had not yet seen them. His team had also not seen evidence against the defendant - material that the prosecution is obliged to share with defence attorneys.

But military prosecutors defended the need for secrecy. Chief prosecutor Army Brigadier General Mark Martins told reporters the country's secrets 'are not an open book,' but insisted the accused 'will be well represented.'

National security requires a balance, he said. While democracy requires certain information to be public, there are 'items that cannot be publicly disclosed for the sake of security,' he said.

Civil liberty advocates have argued that the rules are unfairly stacked against the accused in a military tribunal, and have pushed for civilian trials in the US, which grant suspects the right to hear charges and be tried within a reasonable time. Obama also wanted to pursue civilian trials, but met a roadblock in Congress and in New York City, where some of the trials were to have been held.

Fewer than 200 prisoners remain at Guantanamo, down from a high of nearly 800 in the years after it opened in 2002. Many like al-Nashiri have been held for nearly a decade awaiting charges and trial.

The Pentagon also alleges that al-Nashiri was behind an attempted attack on USS The Sullivans in the Port of Aden in January 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in October 2002 that left one person dead.