USS Cole bombing: Judge allows prosecution to use 'sanitized' evidence

Judge Pohl’s rulings came as defense lawyers and military prosecutors at Guantanamo squared off Wednesday in a second day of pre-trial motions in Nashiri’s planned military commission trial. Reporters monitored the hearing via a live video feed at Fort Meade in Maryland.

Nashiri faces a potential death sentence for his role in the Cole attack in 2000 that killed 17 American service members. He is also charged with plotting a failed attack on the USS The Sullivans and a 2002 assault on the French supertanker MV Limburg that killed a crewmember.  

A trial date has not yet been set.

Judge Pohl is being asked to decide a string of foundational issues in a newly-minted military commission format that has not yet been fully tested.

In addition to the classified summary issue, Nashiri’s lawyers have complained that security officials at the terror detention camp at Guantanamo are interfering with the delivery of attorney-client privileged documents. Under a recent order by the commander of the camp, a special review team would be tasked to examine communications between the lawyers and their client to ensure they are properly marked as privileged documents and do not include any unauthorized items. 

Defense lawyers say the practice threatens to violate the attorney-client privilege and undermines a detainee’s right to the effective assistance of counsel.

Security officials at Guantanamo defend the practice as a necessary precaution to prevent the smuggling of contraband into the detention facility and the transmission of any unauthorized information to or from a detainee.

Government lawyers insist there is no contact between Nashiri’s prosecutors and the security team assigned to examine the attorney-client communications. But Nashiri’s lawyers say they are entitled to a stronger guarantee than simply “trust us.”

Navy Commander Andrea Lockhart, a government lawyer, told Judge Pohl that the new policy was prompted in part because someone smuggled into the camp a copy of Inspire Magazine, an Al-Qaeda supportive publication.

Ms. Lockhart stressed that the review procedures were not designed to violate Nashiri’s attorney-client privilege. “Privileged mail is not being read,” she said. “It is not being read.”

Navy Lieutenant Commander Stephen Reyes, a defense lawyer, said under the proposed review procedure attorney-client material may ultimately be passed to three levels of review simply to determine compliance with the underlying order.

“That in no way protects the attorney-client privilege,” Mr. Reyes said.

“In the end of the day it is about trust,” Reyes told the judge. He said defense lawyers like prosecutors are both officers of the court and officers in the military and have a responsibility to ensure that Nashiri is adequately defended and to prevent anything that might undermine security measures at the detention facility.

After two hours of argument, Judge Pohl ordered the defense lawyers to present a proposed order resolving the attorney-client document issue within seven days. He then gave the government seven days after that submission to prepare its own suggested order.

Judge Pohl said he would consider the proposals and craft an order. “You are going to get a new order in writing and everyone will understand it,” he said.

Defense counsel also objected that they are being forced to use government computers and the military’s Internet system to send e-mail. They say this leaves their computer-based work and sensitive e-mails open to potential monitoring by Defense Department officials.

On Tuesday, Judge Pohl authorized the defense team to use encryption software to protect their computer files and e-mail from potential surveillance or interception.

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