By Donna Miles
American Forces Press Service
FORT MEADE, Md., Jan. 18, 2012 - A prosecutor in the trial of the alleged mastermind behind the USS Cole bombing divulged today the root of a new order that allows officials to monitor prisoners' legal mail at Guantanamo Bay, Cuba: a copy of an extremist magazine found at the detention facility.
Navy Cmdr. Andrea Lockhart, a member of the prosecution team in the case of Abd al-Rahim al-Nashiri, told the court a copy of Inspire magazine "got in" to the facility, although she did not specify exactly where. The English-language magazine is published by the al-Qaida of the Arabian Peninsula organization, and it includes articles designed to inspire extremists and teach them how to carry out violent acts.
Discovery of the magazine – considered contraband – sparked Navy Rear Adm. David B. Woods, commander of Joint Task Force Guantanamo, to institute a new policy last month that allows government officials to monitor prisoner's legal mail.
Lockhart told the court today the discovery of Inspire magazine demonstrated that previous rules that covered incoming mail at the detention center weren't sufficient.
During testimony yesterday, Woods told Navy Lt. Cmdr. Stephen C. Reyes of the defense team the new policy allows members of a privilege review team to conduct a "plain-view review" of written communications not marked as protected attorney-client information. This review, Woods testified, is designed to ensure this correspondence does not include physical or information contraband, such as maps of the detention facility.
Woods told the court yesterday the new policy balances his responsibilities to facilitate attorney-client communication while also ensuring security, safety, force protection and good order at the facility. However, the new order has become a major sticking point in Nashiri's pretrial hearing, even though both the defense and prosecution teams acknowledge his mail has never been searched under the new policy.
The issue has dominated discussion during both days of the pretrial hearing that began yesterday to address 10 motions filed by the defense and prosecution teams.
Nashiri's defense team continued its argument today that the new policy compromises the attorney-client privilege because it allows a special review team to examine detainees' legal correspondence. The prosecution proposed that the review team operate as an independent body, "walled off" from the prosecution, and that defense attorneys be able to observe any reviews of their client's legal documents.
The defense conceded that prison officials need to be able to inspect for contraband, but insisted that this should not extend to reading legal mail.
After extensive discussion over the past two days by both teams, Army Col. James Pohl, the judge, deferred a decision on the issue today. He did, however, offer the defense assurance that a new order will come, probably within "a couple of weeks."
Pohl gave the defense team seven days to come up with a complete order it believes meets its requirements. He also directed the prosecution to come up with a clear definition of what "plain view" means, and said the team will have seven days to comment on the defense's proposed order.
Considering another motion, Pohl responded to a defense concern that classified information used by the defense – and summarized with the goal of creating an unclassified document that also omits sensitive material such as sources and collection methods – risks leaving out key information the defense team needs.
Richard Kammen, the lead civilian defense counsel, argued that Pohl's determinations otherwise will be made in a vacuum without consideration for the defense.
Pohl ruled that the defense has until a hearing to be scheduled in April to tell him exactly what kind of material it needs to build its case. That way, he will be able to take that information into consideration when comparing the prosecution's summary to the source material.
The judge will then share any changes he makes to the summary with the prosecution team before approving it. At that point, the document becomes final, not able to be reconsidered except in the event of an appeal, officials explained.
During a post-hearing news conference, Kammen accused the prosecution of trying to get Pohl to make a quick, irrevocable decision that will impact the defense's case, but with no meaningful input from the defense. He commended Pohl for delaying action until April, although indicating that it's still too little time for the defense team to adequately review the mountains of information involved and request needed resources.
"Three months in the context of the demands of this case is a blink of an eye," he said.
Kammen again condemned the military commission process, saying it was designed "solely to provide the façade of justice, but not real justice." He said it is "completely outside the pale of what American justice has stood for for 200 years."
Army Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, underscored the importance of protecting classified information as well as sensitive information when it is in the public interest during this and other trials.
He emphasized that military commissions – like all criminal trials in the U.S. federal system of criminal justice – must subscribe to rules that balance the accused's right to a fair trial and the need to protect national security and other public interests.
Although Nashiri was in the courtroom during today's proceedings, all the activity revolved around the prosecution and defense teams.
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 crew member 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.
The Guantanamo Bay proceedings are being broadcast via closed circuit television to three sites in the United States. Two of those sites are 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 crew members aboard the vessel during the attack.
Pretrial Proceedings Begin for Alleged USS Cole Mastermind
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Former Chairman American Cold War Veterans