USS Cole bombing: Judge allows prosecution to use 'sanitized' evidence
A ruling Wednesday puts Abdal Rahim Al-Nashiri at a significant disadvantage because prosecutors will be able to rely on declassified summaries of classified evidence.
FORT MEADE, Md.
A military judge at Guantanamo Wednesday cleared the way for the government to prosecute the accused mastermind of the USS Cole bombing based on "sanitized" summaries of classified evidence rather than risk the disclosure of sensitive intelligence sources and methods.Skip to next paragraph
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In an important victory for prosecutors, the judge, US Army Col. James Pohl, rejected a request by defense lawyers representing alleged Al Qaeda leader Abdal Rahim Al-Nashiri that they be allowed to participate in the formulation of the unclassified summaries.
Judge Pohl seemed sympathetic to the defense request, but ultimately ruled that the Military Commissions Act required him to exclude defense lawyers from direct involvement in deciding how classified information will be summarized for use as evidence against their client.
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The provision cited by the judge stems from an effort by Congress to make it possible for prosecutors at a military commission trial to tap into a vast trove of intelligence information for use as evidence while minimizing the risk of an unintentional disclosure of national secrets.
The provision also helps the government ensure that classified documents revealing potentially embarrassing or illegal activities may be excluded from consideration as evidence in the case.
The ruling is a setback to defense efforts. It places attorneys for Mr. Nashiri at a significant disadvantage because the governing statute requires that once Judge Pohl approves evidence summaries, that action is final and not subject to reconsideration.
Defense lawyers had asked the judge to allow them to examine the proposed summaries and provide their perspective before the judge gave his final approval. Government lawyers objected, saying the statute forbids such a procedure.
“Please don’t make this decision in a capital case in a complete vacuum,” Lead Defense Counsel Richard Kammen urged the judge. “It really is just fundamental fairness given the stakes.”
The judge said his hands were tied by the provision in the Military Commissions Act.
Prosecutor Anthony Mattivi took exception to Mr. Kammen’s comments. “The government has no interest in the military judge making a decision in a vacuum,” he said. “We want this to be sustained on appeal.”
Judge Pohl provided a concession to the defense team on the summary evidence issue. He said he would give them until the next hearing in the Nashiri case in April to submit any information to him that they feel might help the judge assess the relevance and accuracy of the government’s summaries from a defense perspective.
But it is unclear how defense lawyers will be able to know what may be the subject of the government’s proposed summaries since they are being denied access to the underlying classified information.
“We don’t even know what the [government’s proposed summary] material is about,” Kammen said.
“The investigation? What happened in Yemen? What happened in another place? We have no idea,” the lawyer said. “So part of the challenge is guessing how it would impact our defense.”
Kammen added: “Perhaps after we have reviewed the discovery, perhaps we will be able to discern what it may be about. But it will be, at best, an educated guess.”
Discovery is information gathered by prosecutors related to a case that must be turned over to defense counsel to help them prepare for trial.
So far defense lawyers have received more than 17,000 pages of material and are slated to receive an additional 60,000 to 70,000 pages.
Although the judge is following the rules established by Congress for military commissions, the defense attorneys find themselves in an unusual position, particularly in a case in which the federal government is seeking the death penalty.
“Today was really about secrecy,” Kammen said. “And it was about imposing rules unlike any rules in federal court, unlike rules in any capital case in any state court in the United States.”