GUANTANAMO BAY NAVY BASE, Cuba -- Defense lawyers brought the USS Cole death-penalty trial to a standstill Monday morning while they consulted ethics advisors on whether they can go forward with pretrial hearings in light of revelations of outside monitoring of the maximum-security war court.
Navy Lt. Cmdr Stephen Reyes, defending alleged al-Qaida lieutenant Abd al Rahim al Nashiri, sought to gather evidence from the court on whether the CIA or another intelligence agency was listening in on confidential attorney-client conversations -- at the court or at the prison.
"If it is the CIA that is conducting the listening, this is the same organization that detained and tortured Mr. al Nashiri," he told the judge, Army Col. James Pohl. "It's the same organization that lied to a federal court judge regarding the existence of videotapes."
CIA agents waterboarded and otherwise threatened the Saudi-born Nashiri before bringing him to Guantanamo in 2006 for this death-penalty trial, which could start with a military jury seated next year. He is accused of orchestrating al-Qaida's suicide bombing of the USS Cole off Yemen in October 2000 that killed 17 U.S. sailors.
Monday, the case prosecutor, Anthony Mattivi, opposed the effort to investigate through court witnesses who is listening in.
Pohl ruled that, in the absence of hard evidence, the proceedings would continue. He instructed case prosecutors to work with the defense team outside of court in their effort to gather eavesdropping evidence.
"Does it surprise you that the United States government has the ability to monitor all sorts of conversations throughout the world?" Pohl said.
At issue was a surprise episode last week in Sept.11 pretrial hearings that revealed intelligence agents outside the courtroom had a kill-switch to stop the public from hearing the proceedings. Pohl responded with fury, and a judicial order to disconnect the switches. But he but did not order them to stop listening in.
Defense lawyers argue that, if the agents could listen in to mute the audio, they might be eavesdropping on privileged attorney-client conversations through listening at the court or at holding cells where lawyers meet the accused.
Nashiri sat silently at the defense table in court while his lawyer said he was troubled by the possibility that CIA agents could eavesdrop on ostensibly private attorney-client conversations.
"There's a man behind the curtain," Reyes told the judge. "We have an ethical obligation here to protect attorney-client confidences."
Rather than go forward, however, Reyes and Indianapolis defense attorney, Richard Kammen, asked for and got a three-hour recess to consult their ethical advisors on whether they could continue to represent Nashiri in court. Court was recessed until 1 p.m.
Reyes said he would be calling Washington, D.C., to discuss his ethical obligations with the Office of the Chief Defense Counsel for military commissions, run by Air Force Col. Karen Mayberry.
Kammen was ringing the Indiana Bar associations. He's a civilian attorney with extensive federal and state death-penalty defense experience, who is being paid by the Pentagon to defend Nashiri as a "learned counsel."
Pohl declared himself unaware of earlier episodes, during the Bush administration years, when defense lawyers consulted their bars on whether they could follow an order from the court to defend a client at the war court or had an obligation to stand mute in light of an ethical conflict. In one episode, a since-freed, never-convicted Guantanamo captive, Binyam Muhammed, fired his lawyers and a military judge ordered them to defend him anyway.
One uniformed defense lawyer, an Air Force major, refused and invoked the Fifth Amendment.
Monday, Judge Pohl expressed surprise that the defense attorneys wanted outside advice. The judge announced that, in his opinion, court arguments could continue. This week's pre-trial motions were to include mental-health testimony on the impact on Nashiri of his treatment by the CIA, which besides waterboarding him in interrogations, threatened to rape his mother and held a cocked pistol and revving drill to his hooded head.