The lawyers complained that tough security restrictions at the terror detention camp at Guantanamo Bay were hindering their ability to work closely with Abdal Rahim Al-Nashiri in preparing his defense against the capital murder and terror conspiracy charges filed against him.
Their request was denied on the first of two days of pre-trial motions in the military commission trial at the US naval base in southeast Cuba. A live video stream of the proceedings is being broadcast to members of the press at Fort Meade.
In a full day of motions, military prosecutors and defense lawyers sparred over controversial plans by Guantanamo officials to monitor attorney-client communications as well as potentially the defense attorneys’ computers and emails.
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The commander of the joint task force that runs the detention camp, Rear Adm. David Woods, defended an order he issued last month establishing new procedures for defense counsel to submit attorney-client communications to military officials for clearance before they would be forwarded on to their client.
The admiral said the procedure was designed to prevent transmission of any information that might pose a security threat, such as a map of the facility. But defense lawyers complain that the monitoring could violate the attorney-client privilege.
Admiral Woods testified that the team reviewing the communications is comprised of civilian contractors hired by the Defense Intelligence Agency and includes former intelligence officials.
Asked whether the contractors could divulge any information from the reviews to an outside source, Woods said he didn’t know. “The contract is a [Department of Defense] contract and I am not familiar with all the terms,” he said.
The judge is set to hear more argument on Wednesday on the attorney-client privilege issue, as well as key matters concerning how classified evidence will be summarized and eventually presented to a jury in a military tribunal.
No trial date has been set.
In one of the more revealing exchanges of the day, defense attorney Richard Kammen asked the military judge in the case to order detention camp officials to allow Nashiri to meet with his defense team at a table with chairs – without the required manacles.
He suggested that Nashiri was suffering from post traumatic stress disorder stemming from the four years he had been interrogated and held in secret custody by the Central Intelligence Agency. Mr. Kammen said that in addition to being subjected to waterboarding and threatened with a loaded gun and a power drill, Nashiri was most likely held that entire period in shackles.
The defense lawyer suggested that the presence of shackles during his meeting with defense lawyers was triggering some recurrence of his ordeal, degrading Nashiri’s ability to help his lawyers.
Kammen said he was not concerned about his own or his colleagues security.
“We don’t believe there would be any circumstance where we would be at risk,” Kammen said. “Nothing that has occurred in the years that we have been meeting with Mr. Al-Nashiri suggests we would be at any risk.”
Kammen told the military judge, Col. James Pohl, that Nashiri had met with members of the International Committee of the Red Cross without any physical restraints. He said there was no reason he and his team couldn’t visit his client under similar circumstances.
The government’s trial counsel, Anthony Mattivi, objected to Kammen’s request. He said the defense was asking Judge Pohl to substitute his judgment for that of the commander of the terror detention facility.
He said camp officials have attempted to accommodate the defense team’s request by using a single chain fastened to the defendant’s ankles and locked to the floor. He said camp officials would also permit defense counsel to meet with their client on opposite sides of a barrier for non-contact visits.
Judge Pohl said that to grant the defense request would place him in the position of deciding the day-to-day operations of the detention camp. He declined to do so.
Nashiri is classified as a high value Al Qaeda detainee and is considered one of the most important prisoners at Guantanamo.
He is charged with conspiring to murder crewmembers of the USS Cole, an American warship, in the harbor at Aden, Yemen, in October 2000. Seventeen US service members died in the attack.
He allegedly instructed two suicide bombers to exchange friendly waves with crew members on the deck of the warship as the would-be bombers piloted their explosive-laden skiff close enough to the Cole to damage the ship.
Nashiri is also charged with attempted murder for his role in planning a January 2000 attack on the USS The Sullivans in the Aden harbor. That plot failed when the boat carrying the explosives sank shortly after being launched.
He is also accused of planning an October 2002 terror attack on the French supertanker MV Limburg off the coast of Yemen. That attack killed a crewmember.
If convicted, Nashiri faces a potential death sentence.