GUANTANAMO BAY NAVAL BASE, Cuba – A dispute over whether a defendant must be present during a military tribunal brought proceedings to a halt Tuesday in the case of a Guantanamo prisoner accused in the attack on the Navy destroyer the USS Cole.
Defendant Abd al-Rahim al-Nashiri decided to boycott the pretrial motions hearing to protest the use of belly chains to move him from his cell at the Guantanamo Bay prison.
Prosecutors wanted the 47-year-old prisoner brought to court to explain his reasoning on the record before any discussion of other motions in the case. The defense objected, saying any use of force could traumatize a man who they say was tortured in U.S. custody.
The judge, Army Col. James Pohl, decided after more than 90 minutes of debate that al-Nashiri must come to court Wednesday.
"Tomorrow, weather permitting, your client is coming," Pohl said, referring to Tropical Storm Sandy, which was forecast to grow into a hurricane and strike eastern Cuba, potentially near the U.S. base early Thursday. The judge then adjourned the hearing for the day.
U.S. officials had considered canceling the remainder of this week's pretrial hearing, which is scheduled to run through Thursday, but had decided to go forward as of late Tuesday, said Kelly Wirfel, a spokesman for the Navy base.
The military was forced to postpone hearings and evacuate officials and visitors who came to Guantanamo for proceedings in August because of Tropical Storm Isaac.
Whether a defendant must attend sessions of the tribunal has been a recurring theme with al-Nashiri, who is accused of orchestrating the deadly 2000 bombing of the USS Cole in Yemen, as well as in the case of five Guantanamo prisoners charged in the Sept. 11 attacks.
Pohl, who presides over both cases, has previously ruled that defendants have a right to be absent from pretrial proceedings just as they have a right to be present for them. He has not said yet whether they must attend their actual trials, which in both cases are not expected to start for at least a year. He has signaled he will likely require them to be in court once a jury is convened.
Prosecutors want the accused to state their reasons for being absent to make sure they are making the choice willingly and to avoid creating any uncertainty that could become grounds for a later appeal. The prosecution also believes that tribunal rules require defendants to be in court.
"The accused has to come to ensure the integrity of the trial," the chief prosecutor, Army Brig. Gen. Mark Martins, said of al-Nashiri.
The judge allowed a compromise of sorts in both the Sept. 11 and Cole bomber cases in which each defendant would be asked in the morning if they want to attend that day's session. If not, they would sign a waiver form acknowledging they were giving up their right to be present and are aware that proceedings would go on without them.
Al-Nashiri told a prison legal official on Tuesday he would not attend, then wrote on the form "I am refusing to come today to protest the chains," a reference to restraints placed across his belly when he is moved within the camp.
Lawyers for the prisoner say he was brutalized in U.S. custody, before he was taken to Guantanamo in September 2006, and that the chains will "retraumatize" him, a claim the prosecution disputes. The defense team has asked to have medical experts evaluate their client and the potential psychological effects of the restraints.
Attorney Richard Kammen told reporters Monday that al-Nashiri also doesn't believe the proceedings are legitimate since he could be indefinitely detained at Guantanamo even if acquitted.
"If he is acquitted he does life without parole in Guantanamo. If he's convicted he gets life without parole or death in Guantanamo," Kammen said. "It's very easy to see somebody saying 'Why do I want to participate in this? I've got no real stake in the outcome.'"
The discussion prevented action on other issues before the court during this pretrial session, including a motion by the defense to dismiss the charges because they say the U.S. was not at war when the Cole bombing occurred so al-Nashiri should not be facing war crimes charges at the military tribunal.
Al-Nashiri faces charges that include terrorism and murder in a special tribunal for wartime offenses known as a military commission for allegedly orchestrating the bombing of the USS Cole, an attack that killed 17 sailors and wounded 37. He is also accused of setting up attacks on two other vessels. He could get the death penalty if convicted.