Hearing For Accused USS Cole bomber Continues, Despite Delays

Donna Miles at the American Forces Press Service offers the below piece:

FORT MEADE, Feb. 4, 2013 - Pre-trial hearings for the alleged bomber of the USS Cole opened today at Naval Station Guantanamo Bay, Cuba, and encountered issues from both the prosecution and defense that threatened more delays.

The first of four days of pre-trial hearings in the government's case against Abd al Rahim Hussein Mohammed Abdu al-Nashiri opened with the defense asking for a postponement over concerns that third-party monitoring could spill over to confidential attorney-client communications.

Army Col. James L. Pohl, the commission judge, denied the request by Navy Lt Cmdr. Stephen Reyes, saying it was based on unsubstantiated suspicion. The judge upheld prosecutor Anthony Mattivi's argument that the defense bears the burden of proving such allegations and said in his ruling that lacking such proof, the trial will go on.

The debate stemmed from an incident last week during pre-trial hearings for five defendants charged with orchestrating the 9/11 terrorist attacks.

During the Jan. 28 hearing, an unnamed "original classification authority" activated a censor button in the courtroom. The button set off a flashing warning light and blocked about two minutes of audio for everyone observing the proceedings via closed-circuit TV, as well as for media, who sit behind soundproof glass in the courtroom.

The incident caught Pohl and others by surprise, and he ruled last week that in the future, only he will have the authority to block audio feeds believed to contain classified information.
But Reyes told Pohl today the incident opened a Pandora's Box that needs resolution.

"We can't ignore the man behind the curtain," he said, because it is unclear how pervasive the monitoring is. Reyes said the defense team must assume that if a third-party organization is listening in on courtroom activities, it must also assume that it's eavesdropping on other activities, including privileged discussions between defense lawyers and their client.

"We see a tremendous ethical issue here," Reyes said. Until these questions are answered, he said there is no way to effectively defend Nashiri. Civilian defense counsel Richard Kammen told the judge he would not meet with his client outside the courtroom until this issue is resolved.

To address these concerns, Pohl suggested that all microphones at empty desks within the courtroom, as well as at the defense table, be "ripped out" and that attorneys address the court only from the podium. He did not, however, order the removal.

Army Brig. Gen. Mark Martins, chief prosecutor in the Office of Military Commissions, denied any insinuation that the prosecution is listening in on or has any access to privileged communication between the defense and defendant.

The prosecution "actively avoids the confidential communications between an accused and his counsel," he wrote in a statement released today. "This is part of our professional responsibilities and our oaths to serve justice. No one has ever asserted a substantive or credible allegation that the prosecution listens to such communications."

After Pohl's ruling, Reyes asked for a three-hour delay to consult with other members of the defense team. The judge approved the request but chided Reyes for not being prepared to move forward and said all parties should be prepared to do so in the future, regardless of how he rules on their motions.

But the government's case against Nashiri encountered another potential delay as discussion turned to Nashiri's mental competence. Much of today's hearing delved into whether he should be evaluated before the trial goes forward, and by whom.

The prosecution challenged the defense claim that Nashiri suffers from long-term post-traumatic stress disorder allegedly caused by CIA torture before he was transferred to Guantanamo Bay. Navy Cmdr. Andrea Lockhart asked Pohl to order a mental health board to evaluate Nashiri and determine the validity of this claim. Kammen questioned what such an assessment would provide, telling Pohl he lacks faith in whatever "hacks" the convening authority might appoint to conduct it.

The judge authorized a mental health exam. But before it is conducted, he granted the defense's request that Dr. Vincent Iacopino, a member of the Physicians for Human Rights organization, be called on to provide advice on how to conduct it without "doing harm."

Iacopino is expected to testify within the next day or two. Pohl said he would not take up other legal and administrative issues surrounding the case until after the mental-health assessment is complete.

The prosecution asked the judge today to clarify previous rulings that give Nashiri the right to skip court sessions if he chooses, while also allowing him to change his mind during a day's proceedings and be transported to the hearing.

The defense team also requested that Nashiri not be restrained with belly chains when he is moved within the detention facility. Defense attorneys said the chains could bring up past trauma from the period when Nashiri was allegedly restrained while he was tortured.

Prosecutors raised concern that eliminating current security safeguards could threaten the safety of others, including the guard force.

Nashiri, who appeared in court in a traditional white tunic and wore headphones to follow the translated proceedings, is the alleged mastermind behind the attack off the Yemeni coast that killed 17 sailors. He is charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects and hazarding a vessel.

The charges arise out of an attempted attack on the USS The Sullivans in January 2000, the actual attack on the USS Cole in October 2000, and an attack on the motor vessel Limburg -- a civilian oil tanker -- in October 2002.

Nashiri is a Saudi-born member of al-Qaida. U.S. officials allege he was under the personal supervision of Osama bin Laden, and that bin Laden personally approved the attacks on the U.S. Navy ships.

Note: I interviewed the captain of the USS Cole for Counterterrorism magazine a while back. You can read the interview via the below links:

http://home.comcast.net/~pauldavisoncrime/pwpimages/CommanderKirkLippoldQAndA.jpg

http://home.comcast.net/~pauldavisoncrime/pwpimages/CommanderKirkLippoldQAndA2.jpg

http://home.comcast.net/~pauldavisoncrime/pwpimages/CommanderKirkSLippoldQAndA3.jpg

The USS Cole Attack, 12 Years Later

Michael Warren at the Weekly Standard offers a piece on the anniversary of the al Qaeda terrorist attack on the USS Cole.

Twelve years ago today, on October 12, 2000, al Qaeda terrorists on a suicide mission drove a small boat filled with explosives into the hull of the USS Cole while the Navy destroyer was docked at the port of Aden in Yemen. The attack killed 17 American sailors and wounded 39 others. The attack came nearly a year before al Qaeda would murder nearly 3,000 Americans in the attacks on September 11, 2001.

You can read the rest of the piece via the below link:

http://www.weeklystandard.com/blogs/uss-cole-attack-12-years-later_654341.html

You can also read my Counterterrorism magazine interview with Kirk S. Lippold, the former commanding officer of the Cole, who wrote a book about the attack and his cool and courageous crew who saved lives and the ship after the attack, via the below links:

http://home.comcast.net/~pauldavisoncrime/pwpimages/CommanderKirkLippoldQAndA.jpg

http://home.comcast.net/~pauldavisoncrime/pwpimages/CommanderKirkLippoldQAndA2.jpg

http://home.comcast.net/~pauldavisoncrime/pwpimages/CommanderKirkSLippoldQAndA3.jpg

My Q & A With Commander Kirk S. Lippold, The Former Commanding Officer Of The USS Cole

My Q&A with Commander Kirk S. Lippold, USN (Ret), the former commanding officer of the USS Cole and author of Front Burner, appears in the current issue of Counterterrorism magazine.

The USS Cole was attacked by al Qaeda terrorists on October 12, 2000.

You can read the piece below:

Military Judge Hears Arguments On USS Cole Defendant's Motions

By Jim Garamone
American Forces Press Service

FORT MEADE, Md., April 11, 2012 - A military judge ruled today that a defendant in the USS Cole bombing may meet with his defense attorneys unfettered.

Army Col. James L. Pohl deferred several other defense motions in the case of Abd al-Rahim Hussein Mohammed Abdu al-Nashiri at Guantanamo Bay, Cuba.

Today's ruling made moot testimony from Nashiri on the effects he felt from his imprisonment prior to arriving at the detention facility in Cuba. That testimony could have contained classified information.

Lawyers also argued on constitutional motions, with the defense arguing that neither terrorism nor conspiracy is a crime under accepted international law. They said Nashiri – who is alleged to have masterminded the plot that killed 17 sailors aboard the USS Cole during an act of terror in Aden, Yemen, in 2000 – cannot be charged with those crimes because they don't exist.

Pohl indicated he would rule on these motions later. More arguments on other motions will take place tomorrow.

Nashiri is charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects and hazarding a vessel.

This is a capital case.

The charges arise out of an attempted attack on the USS The Sullivans in January 2000, the actual attack on the USS Cole in October 2000, and an attack on the motor vessel Limburg in October 2002.

Nashiri is a Saudi-born member of al-Qaida. U.S. officials allege he was under the personal supervision of Osama bin Laden, and that bin Laden personally approved the attacks on the U.S. Navy ships.

New York lawyer David Schultz also spoke to the court today, arguing that the peoples' right to know trumped security concerns in this trial. Schultz, who represented 10 media organizations including the New York Times, the Washington Post, Fox News, NPR and the Miami Herald, based his argument on the 1st Amendment to the Constitution.

He noted that lead prosecutor Army Brig. Gen. Mark Martins has been explaining to audiences around the United States how the reformed military commissions system is the best way to advance the rule of law in these cases. Under U.S. law, public attendance of criminal prosecutions is imperative to fairness, he said.

He reached back to the trial of the Lincoln assassination conspirators in 1865 and the Nuremberg trials after World War II to show that military commissions also honored this idea.

He admitted the government had a right to not reveal classified data during a trial, but argued that there are ways to ensure openness while still protecting the information.

Schultz' testimony was the first time outside lawyers have argued in front of the panel at Guantanamo.

Pohl did not disagree with Schultz. He maintained that the default setting in his court is a public hearing. He said proceedings should be closed only when the least restrictive measures cannot be imposed.

Surviving Families, Victims Of Terrorist Attack On The USS Cole Seek Justice

By Donna Miles, American Forces Press Service

WASHINGTON, Jan. 19, 2012 - Family members who lost loved ones during the USS Cole attack and two survivors urged yesterday that justice be served in the quest to ensure a fair trial for the accused mastermind of the attack.

The family members and survivors appeared grim-faced, and some choked with emotion as they spoke to reporters at Guantanamo Bay, Cuba, following the second day of a pretrial hearing for Abd al-Rahim al-Nashiri.

Nashiri is charged with several crimes, including a role in the Oct. 12, 2000, attack on the Cole as it was refueling in Aden Harbor, Yemen. Suicide bombers detonated an explosives-laden boat directly against the ship's port side, killing 17 sailors and wounding 37 others.

Among the survivors was James Parlier, the ship's command master chief petty officer, who worked directly for the Cole's captain and traveled to Guantanamo Bay to watch the pretrial proceedings.

Parlier admitted yesterday that seeing Nashiri during his first visit to Guantanamo Bay since Joint Task Force Guantanamo was stood up "brings up a lot of raw emotion."

"This is a long process, and it has been tough for all of us," he said, noting that the attack affected not only the sailors killed and their families, but also their shipmates, who continue to suffer from physical injuries or post-traumatic stress disorder.

"Every person on that ship lost something," agreed Ronald Francis, a retired sailor whose 19-year-old daughter, Seaman Lakeina Francis, died aboard the Cole. "Everyone is now affected by the outcome of the USS Cole bombing."

Olivia Rux said her life hasn't been the same since her husband, Petty Officer 2nd Class Kevin Rux, an electronic warfare specialist, "was murdered" during the attack. She shared with reporters the emptiness she feels and her personal struggle as one of the family members left behind "to figure out where I belong in this society that has been overlooked."

Rux dismissed defense arguments during the pre-trial hearing that the military commission process is being rushed, denying Nashiri the opportunity to receive a fair trial.

She recalled the painful wait for news after the attack, not yet knowing if loved ones and shipmates were alive or dead, and the agony of having to bury their loved ones. "Where is the justice in that?" she asked.

Francis questioned, after hearing members of the defense team challenge the fairness of the military commission system, who's thinking about those whose lives were cut short, or were left behind. "When the defense talks about justice, where is the justice [for the] sailors aboard that ship?" he said.

He said he wanted to "see the process and justice done – not only for my daughter, but for all the shipmates that were on that ship."

Eleven years after the attack, Master Chief Petty Officer Paul Abney, who was sitting in the ship's mess when the explosion occurred, said he traveled to Guantanamo Bay to seek closure. "I am here to witness justice and to see this process to take place," he said.

He disputed the defense team's arguments that military commissions aren't legitimate court proceedings and insisted that alleged terrorists don't deserve the right to be tried in the United States.

Abney also scoffed at the notion that Nashiri, as a defendant, is likely to have access to national secrets that even he isn't entitled to because he has no need to know. "It doesn't feel fair," he said, "but that's the process and the rules."

He commended the efforts those conducting the commission are making to ensure that Nashiri receives a fair trial. "They are doing their job to be as fair and honest as possible, and we need to let the process go as it was set up at this place, in this time," he said.

Parlier agreed that the legal process has been "more than fair, I believe, with Nashiri." But he made no secret of what he hopes the outcome will be.

"I pray to God that we do prove that he worked with [deceased al-Qaida leader Osama] bin Laden and his cell, creating the nightmare for us that he did," Parlier said. "And I pray that one day, as an older man, that I see him receive the justice that he deserves."

Jesse Neito, whose son, Petty Officer 2nd Class Mark Neito, was killed in the attack, lamented that justice has been "slow, very slow." He expressed hope that he "will be able to see and be alive when the outcome resolves itself."

Rux was more direct. "I have nothing but time to wait until that detainee draws his last breath," she said.

Pretrial Proceedings Begin For Alleged USS Cole Attack Mastermind

By Donna Miles, American Forces Press Service

FORT MEADE, Md., Jan. 17, 2012 - The commander of the U.S. detention facility at Naval Station Guantanamo Bay, Cuba, defended the new policy that allows government officials to monitor prisoners' mail during the opening day of pretrial proceedings for the alleged mastermind in the USS Cole bombing.

Navy Rear Adm. David Woods, commander of Joint Task Force Guantanamo Bay, testified today in response to a motion by the defense at the military commission hearing for Abd al-Rahim Hussein Muhammed al Nashiri. Army Col. James Pohl ruled during proceedings at Guantanamo Bay that Woods should explain the policy he instituted last month.

Woods, one of the highest-level officials to testify in a military tribunal, said the new policy balances his responsibilities to facilitate attorney-client communication while also ensuring security, safety, force protection and good order at the facility.

Woods told Navy Lt. Cmdr. Stephen C. Reyes of the defense team the new policy allows members of a team that reviews detainee privileges to conduct a "plain-view review" of written communications not marked as protected attorney-client information. The review, he said, is designed to ensure this correspondence does not include physical or "information contraband" such as maps of the detention facility.

Woods disputed the defense position that the policy violates client-attorney privilege, or that reviewers must read the material in full to make a determination. He also denied that the policy restricts access between detainees and their lawyers.

One of its benefits, he said, is authorizing guards to search the plastic bins reserved for legal paperwork and correspondence in detainee living spaces. Guards reportedly have found contraband stowed in these "legal bins" in the past.

Woods acknowledged that the policy depends on the professionalism of the privileged review team, as well as their contractual commitments, to ensure their review is conducted properly and ethically. He noted that reviewers, all civilian contractors, must sign a non-disclosure agreement that bars them from sharing this information, particularly with prosecuting attorneys associated with the case.

The prosecution called the defense's request for Woods to appear before the court irrelevant to the case because Nashiri hasn't been subject to mail searches.

However, officials said Pohl's decision to call him likely was made because what happens in the Nashiri case – the first to go through a revised military commission system -- is likely to set the precedent for trials to follow. Army Col. John Head, deputy chief of staff for the convening authority, told reporters the defense's request likely is intended to institute an across-the-board process that ensures all detainees receive equal treatment.

Pohl is expected to render a decision tomorrow, the second of two days of a pretrial hearing to consider 10 motions in the case.

Nashiri, 47, is charged with "perfidy," or treachery; murder in violation of the law of war; attempted murder in violation of the law of war; terrorism; conspiracy; intentionally causing serious bodily injury; attacking civilians; attacking civilian objects; and hazarding a vessel.

The charges arise out of an attempted attack on the USS The Sullivans in January 2000 and an attack on the USS Cole in October 2000, during which 17 U.S. sailors were killed and 37 more wounded. Nashiri also is accused of involvement in an attack on the MV Limburg, a French civilian oil tanker, in October 2002 in which one crewmember was killed and about 90,000 barrels of oil spilled into the Gulf of Aden. If convicted, Nashiri could be sentenced to death.

Nashiri did not enter a plea during his arraignment at Guantanamo Bay in November.
Although the defendant was in the room during today's proceedings – albeit it out of camera view for remote viewers for most of the hearing – all the activity revolved around the prosecution and defense teams.

Pohl rejected two defense motions: one to allow Nashiri to be unrestrained during his meetings with his legal counsel, and one to establish an enclave – a protected network within the larger Defense Department computer network – in an effort to keep DOD from monitoring the defense counsel's computers and electronic communications.

Pohl dismissed civilian defense counsel Richard Kammen's argument that defense counsel should be able to meet with unrestrained detainees in locked-room meetings, as representatives of the International Committee of the Red Cross are able to.

The current policy requires detainees to be shackled and in an unlocked room during meetings with their attorneys, enabling guards to enter the room and for attorneys to exit quickly in the event of a disturbance, the prosecution noted.

Anthony W. Mattivi, a member of the prosecution team representing the Justice Department, expressed concern that changing the current policy could put the guards at increased risk and said Woods should be the one to make any changes to the policy, not the court. "That's not his call," Mattivi said of Kammen. "It's the commander's."

Pohl agreed, ruling to keep the current policy intact.

The judge, however, left the door open for a possible request by the defense for an enclave or other security remedy for its electronic communications in the future, while acknowledging that even material in enclaves is subject to monitoring.

Kammen compared the encryption system the defense now uses to protect sensitive materials to putting them in a locked drawer in an office, then handing the government the key to the drawer and leaving the office door open. "It's the appearance of confidentiality without the substance," he told the court.

Lockhart argued that an enclave isn't necessary because encryption already ensures the maximum security possible for the documents. Pentagon computer security expert Adam Bennett, whom she called to the stand, said it's virtually impossible for government officials to access encrypted information or open documents – including those used by the defense team – without the password and encryption software needed to access it.

Both the defense and prosecution, as well as the judge, recognized that all material on DOD networks is subject to routine, noncontent-related screening to prevent viruses and cyber attacks.

In other motions considered today, Pohl granted a motion supporting more public access to court proceedings. Currently the proceedings are broadcast from the court at Guantanamo Bay via closed circuit to just three locations in the United States. Two of those sites are here at Fort Meade in a theater and training-room facility. Another, at Norfolk Naval Base, Va., is reserved for families of USS Cole victims as well as crewmembers aboard the vessel during the attack.

Pohl also moved that unofficial transcripts of the proceedings, posted online while the official transcript remains classified, may be referred to by both legal teams during the trial.

Speaking to reporters after the hearing, Kammen said the defense considered today "on balance, a very successful day," while acknowledging that some of the motions made could ultimately delay the trial, possibly as far out as 2015.

Kammen called military commissions "at best, a second-class system of justice" and said they are designed to be secretive and provide expedient justice at the expense of transparency and fairness. He added that the defense team today fought for things it wouldn't have had to in federal court, and accused the government of blurring the line between classified and embarrassing information.

Army Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, disputed Kammen's charges, noting that the prosecution team in the commissions operates much like prosecutors in federal courts. They play no part in handling defendant's correspondence or defense attorney's emails, don't communicate with facility personnel about contacts with an accused legal materials and aren't privy to those materials, he said.

Martins said proceedings like today's are designed to ensure legal issues are resolved in a way "consistent with the fair, transparent and accountable administration of justice under the rule of law."

Despite the manpower and expense associated with the commission proceedings, Martins said the United States has a responsibility to follow them through. "Not only must we continue to pursue the truth for the surviving family members of victims who have been rendered silent, but we must also pursue it because that is what justice requires," he said. "A civilized and open society facing very real and modern security threats can demand no less."

U.S. Navy Honors Sailors Killed, Injured in USS Cole Attack

By Donna Miles American Forces Press Service

WASHINGTON, Oct. 12, 2010 - Navy officials, current and former crew members and families of the fallen gathered today at Norfolk Naval Station, Va., to remember the 17 sailors killed and 39 others wounded in the al-Qaida attack on the USS Cole 10 years ago today.

(The U.S. Navy photo above of the guided-missile destroyer USS Cole is by Petty Officer 2nd Class William Pittman).

Suicide bombers launched the surprise Oct. 12, 2000, attack on the Arleigh Burke-class, Aegis-equipped guided missile destroyer as it was anchored in Aden, Yemen, for a routine refueling stop. The attackers detonated an explosive-laden boat against the ship's port side, tearing a 40-by-40-foot hole in the hull and sending seawater gushing into the engineering compartment.

The attack was the deadliest assault against a U.S. naval vessel since the Iraqis attacked the USS Stark on May 17, 1987.

Retired Navy Cmdr. Kirk Lippold, the Cole's commander during the attack, recalled the impact of the blast.

"There was a thunderous explosion. You could feel all 505 feet and 8,400 tons of guided missile destroyer violently thrust up and to the right," Lippold said during a recent radio interview. "Lights went out, and within a matter of seconds, I knew we'd been attacked."

During today's ceremonies, Navy Adm. J.C. Harvey Jr., commander of USS Fleet Command, saluted the Cole crewmembers' quick response and valor as they fought to keep the ship afloat and tended to the wounded while defending against a feared follow-on attack.

Harvey said the attack underscores the importance of always being trained and prepared, and he praised the sense of vigilance that has been passed down to subsequent USS Cole crews.

After 14 months of upgrades and repairs following the attack, the USS Cole made an overseas deployment in November 2003. The ship later deployed to the Middle East in June 2006.

The USS Cole, which recently returned to its Norfolk homeport after a deployment that took it through the Gulf of Aden, shows no visible evidence of the deadly attack that occurred a decade ago. But below its decks are regular reminders, including a blackened U.S. flag that survived the attack and 17 gold stars that line the ship's "Hall of Heroes" passageway.

As a ship's bells rang 17 times during today's ceremonies, the names of the fallen 17 sailors were read aloud:

* Petty Officer 2nd Class Kenneth Eugene Clodfelter, 21, a hull maintenance technician from Mechanicsville, Va.;

* Chief Petty Officer Richard Costelow, 35, an electronics technician from Morrisville, Pa.;

*Seaman Lakeina Monique Francis, 19, a mess management specialist from Woodleaf, N.C.;

* Seaman Timothy Lee Gauna, 21, an information systems technician from Rice, Texas;

* Seaman Cherone Louis Gunn, 22, a signalman from Rex, Ga.;

* Seaman James Rodrick McDaniels, 19, of Norfolk, Va.;

* Petty Officer 2nd Class Marc Ian Nieto, 24, an engineman from Fond du Lac, Wis.;

* Petty Officer 2nd Class Ronald Scott Owens, 24, an electronics warfare technician from Vero Beach, Fla.;

* Seaman Lakiba Nicole Palmer, 22, of San Diego, Calif.;

* Seaman Joshua Langdon Parlett, 19, an engine room fireman from Churchville, Md.;

* Seaman Patrick Howard Roy, 19, a fireman from Cornwall on Hudson, N.Y.;

* Petty Officer 1st Class Kevin Shawn Rux, 30, an electronic warfare technician from Portland, N.D.;

* Petty Officer 3rd Class Ronchester Manangan Santiago, 22, a mess management specialist from Kingsville, Texas.;

* Petty Officer 2nd Class Timothy Lamont Saunders, 32, an operations specialist from Ringgold, Va.;

* Seaman Gary Graham Swenchonis Jr., 26, a fireman from Rockport, Texas;

* Ensign Andrew Triplett, 31, of Macon, Miss.; and

* Seaman Craig Bryan Wibberley, 19, of Williamsport, Md.