By Carol Rosenberg, The Miami Herald –
GUANTANAMO BAY NAVY BASE, Cuba — A tropical storm took aim at this remote base in southeast Cuba Tuesday as the war court judge opened hearings in the USS Cole case.
The Saudi-born defendant, Abd al-Rahim al-Nashiri, 47, voluntarily skipped the first of three days of scheduled legal arguments to set the stage for his trial as alleged architect of al-Qaida’s 2000 suicide bombing of the $1 billion destroyer off Aden, Yemen.
Seventeen U.S. sailors were killed in the attack. The Pentagon war crimes prosecutor seeks al-Nashiri’s execution as its alleged architect.
A prison camps staff attorney testified, anonymously in a Navy commander’s uniform, that al-Nashiri told her at about 6 a.m. Tuesday that he was boycotting his hearing to protest prison camp practice of chaining up captives by the belly. On a question from a case prosecutor, Anthony Mattivi, the prison lawyer said guards don’t use belly chains to bring al-Nashiri to court.
Prosecutors have fought for a court order forbidding boycotts — even if it requires ordering guards to tackle and shackle the captives and force them into a van for the cross-base blindfolded ride to the war court. Since death is in the balance, they argue, the capital crimes defendants should be at their attorneys’ elbows to offer advice on the case.
The chief prosecutor, Army Brig. Gen. Mark Martins, argued Monday morning for mandatory attendance. He was effectively seeking to get the judge, Army Col. James L. Pohl, to draw a different conclusion from last week when Pohl gave the alleged 9/11 mastermind Khalid Sheik Mohammed and four alleged conspirators the right to voluntarily skip hearings, at least until a jury is seated in the case.
Martins said the attendance question could loom at an appeal. If al-Nashiri is sentenced to death, a series of military and civilian court will review that decision before a military execution is carried out.
Defense attorney Richard Kammen said, if given a choice, al-Nashiri had little incentive to show up at the war court. U.S. policy permits the Pentagon to keep a captive indefinitely, even if he is acquitted of war crimes.
“If he’s going to die in Guantanamo either way, it’s just a question of when,” he said on eve of hearing Monday.
Prosecutors also hav eargued in court filings that the controversial war court could look bad to outsiders if an accused war criminal is allowed to skip his court session.
“They want them there as exhibits to make them look legitimate,” said Kammen.
Al-Nashiri had for months been cooperative, coming to court and sitting quietly. But his lawyers argued that the treatment of coming to court, particularly shackling and blind-folding can be traumatic for a man who was waterboarded, had a gun and drill held to his hooded head, and had his mother threatened during the years he was in CIA custody. He got to Guantanamo in 2006.
Tropical Storm Sandy was south of Jamaica and predicted to strike eastern Cuba overnight Wednesday as Hurricane Sandy, according to the National Hurricane Center’s 5 a.m. EDT advisory.
The Pentagon houses some court staff, including lawyers, at a crude compound of tents and trailers adjacent to the court, called Camp Justice. In August, the judge scratched 9/11 and al-Nashiri hearings on advice from the Navy base commander to evacuate for Tropical Storm Isaac, which delivered no real damage to the war court compound.
Even if the judge decides to recess just for the day of the hurricane, the storm rains that follow could also create an added complication: Camp Justice’s maximum-security courtroom is a prefabricated warehouse-style structure that is encased in eavesdropping-proof metal.
Heavy rains, lawyers say, make court proceedings inside inaudible.
