By Carol Rosenberg Miami Herald
GUANTANAMO BAY NAVY BASE, Cuba — An Army judge abruptly recessed the first military commission session of the year Monday because the alleged architect of al-Qaida’s 2000 USS Cole bombing may want to fire his lawyer.
One-time waterboarded Saudi prisoner Abd al-Rahim al-Nashiri, 49, is scheduled to face trial in September. The judge, Army Col. James L. Pohl, had scheduled eight days of hearings to address defense and prosecution representation questions, efforts by al-Nashiri’s lawyers to narrow the case — as well as postponing the trial until at least February 2015.
But al-Nashiri’s death-penalty defender, Rick Kammen, a civilian, told the judge moments into the hearing that the prisoner wanted to fire him. He asked for two days to work with the accused on preserving the relationship. Pohl agreed.
He recessed until Wednesday and said, if the hearings go forward, he’ll hold Saturday and Sunday sessions to make up time.
Al-Nashiri, who could be executed if convicted as the mastermind of the suicide bombing of the $1 billion warship off Yemen in October 2000, sat silently in the courtroom for the 10-minute hearing.
The case prosecutor, Navy Cmdr Andrea Lockhart, asked the judge to question al-Nashiri directly on the issue. Pohl declined.
There was no immediate word from family members of the 17 American service members who died in the attack. They were brought to the base on Sunday to watch the proceedings.
Parents of some of the slain sailors make the pilgrimage to this remote base in southeast Cuba for each hearing, as guests of the prosecution, and have expressed anger at what they see as defense stalling tactics.
Defense lawyers say the death penalty and secret nature of the proceedings have prolonged this phase. They also cite al-Nashiri’s waterboarding and other “torture” in U.S. custody, which has left him suffering post traumatic stress disorder.
Under military commissions rules, an accused terrorist facing a possible death penalty must have a learned defense counsel on his team. Only Kammen currently qualifies in that role although al-Nashiri also had three military defense lawyers at his table for Monday’s hearing.
Two were new to the team: Navy Cmdr. Brian Mizer, who had previously defended Osama bin Laden’s driver, Salim Hamdan, at a military commissions trial, and Army Maj. Tom Hurley, who had previously been part of Army Pfc. Chelsea Manning’s court-martial defense team.
Until Monday, the Saudi prisoner appeared to have a working relationship with Kammen, a seasoned death-penalty defense lawyer from Indianapolis. The two met in 2008, and al-Nashiri accepted him to his team. Navy Cmdr Stephen Reyes, Nashiri’s first Pentagon-approved military lawyer, brought Kammen to the team and recently left for studies at Harvard.
Another civilian lawyer who has represented al-Nashiri since Mary 2008, Nancy Hollander of Albuquerque, N.M., was at the court Monday as well to protest to the judge that the prison had not let her see the man for a year. But Pohl recessed before that issue was heard.
The United States captured al-Nashiri two years after the Cole attack. But he was held in secret CIA custody overseas, waterboarded and interrogated using other now banned techniques. President George W. Bush had him moved to Guantanamo for trial in September 2006.
Pretrial motions haggle over evidence and legal questions before a military jury is brought to this U.S. Navy base in southeast Cuba to hear the case.
On the eve of the hearings, the chief prosecutor, Army Brig. Gen. Mark Martins, called the prolonged process “an indispensable part of this sharply adversarial process” and “necessary to the fair and open administration of justice.”
Martins himself was expected to be at issue at Monday’s hearing. Mysterious, recent legislation by Congress requires the Pentagon’s chief war crimes prosecutor to be of same rank as the chief defense counsel. But Martins outranks the chief defense counsel, Air Force Col. Karen Mayberry, a problem that could be remedied with a waiver from Secretary of Defense Chuck Hagel, according to a Pentagon spokesman, Army Lt. Col. Todd Breasseale.
Al-Nashiri’s lawyers, who have frequently complained that they are outgunned in resources, filed an emergency motion last week to freeze the proceedings to review Martins’ status. It was still under seal at the war court while intelligence agents reviewed the motion’s suitability for the public to read.
On Monday, only Pentagon prosecution lawyers were present at the court and two Department of Justice attorneys were, inexplicably, no longer part of the team. Gone were Anthony Mattivi, an assistant U.S. attorney in Topeka, Kan., and Joanna Baltes, an expert on classification issues based in Washington, D.C. A document explaining who was officially detailed to the case was under seal at the war court website.
This week’s hearings were expected to recess Thursday to make room at the maximum-security courtroom for the arraignment of another alleged terrorist accused of shopping for boats and navigational systems at al-Nashiri’s behest. Ahmed al Darbi, 39, and at Guantanamo since August 2002, faces terrorism charges related to the purchases and al-Qaida’s bombing of a French-flagged oil tanker, the Limburg, off the coast of Yemen in October 2002.
It was not immediately known if the judge in that case, Air Force Col. Mark Allred, would hold the arraignment sooner.
The Darbi prosecution is the fifth non-capital case at the Obama war court, where the previous four arraignments featured plea deals agreeing to cooperate with Pentagon prosecutors in exchange for eventual, certain release from Guantánamo.