USS Cole Bombing Prosecution Resumes with Focus on Hidden Microphones

Guantanamo Naval Base, Cuba – Defense attorneys for the detainee accused of planning the October 2000 bombing of the USS Cole have resumed efforts to get more information about the microphones discovered in the  Guantanamo Bay detention facility room where they met with their client for more than three years. The government has claimed that the devices, first found by the defense team in mid-2017, were “legacy” microphones no longer in use.

This hearing – the first in the case since January 2020 – is dedicated to witness testimony related to the former attorney-client meeting space. Lawyers for Abd al Rahim al Nashiri plan to call 25 witnesses for the evidentiary hearing, while the government has listed more than 60. The hearing is scheduled to last two weeks.

All of the testimony is expected to take place in classified sessions that are closed to the public, including the media. They are also closed to al Nashiri, who faces a possible death sentence for his alleged role in the attack that killed 17 U.S. sailors off the coast of Yemen. Defendants in military commissions cannot attend classified sessions for which participants need the highest security clearances.

“The who, what, where, why and how is all classified by the government,” Navy Capt. Brian Mizer, one al Nashiri’s lawyers, said about the microphone dispute in a pre-hearing meeting with the three journalists who have attended the session.

Al Nashiri’s lead lawyer, Anthony Natale, was not in the Guantanamo Bay courtroom for Tuesday’s brief open session. Natale, other defense counsel and some prosecution staff are operating from the new Remote Hearing Room, or RHR, in Crystal City, Va., where most of the witnesses are testifying from during the next two weeks.

The judge, Army Col. Lanny Acosta, who is now also the chief judge of commissions, was appointed to the case by the former chief judge in February 2019. A year later, Acosta set a February 2022 trial date before the pandemic led to the cancellation of all proceedings until this latest round moved forward. Most of Tuesday was spent on administrative matters, including the swearing in of new counsel, identifying who was present in court and at the RHR and summarizing the scheduling discussions held by the parties during the pandemic.

Acosta also reminded al Nashiri of his right to be present in court or to waive his attendance. In the scripted colloquy, the judge did not mention that al Nashiri’s right was largely irrelevant for such a critical and expansive evidentiary hearing in the case that will decide his life.

The judge told al Nashiri that he understood the absence of Natale and other staff from the Guantanamo courtroom stemmed from a desire for the lawyers to be in the same room as witnesses, which also is what Mizer told reporters prior to the hearing. Lawyers in multiple commission cases have expressed concerns over the RHR possibly limiting a defendant's right to confront witnesses in court. Acosta asked al Nashiri if he objected to the arrangement.

“No,” al Nashiri said in English, with his interpreter and Mizer to his right. Al Nashiri was clean shaven with a short haircut and wore a button-down shirt.

Also Tuesday, the defense team filed a separate motion to have the case dismissed for 6th Amendment violations related to the witnesses. While the pleading is classified, Mizer said after court that the vast majority of witnesses are identified to defense lawyers only by alphanumeric identifiers, which means the team “can’t investigate or confront them.”

Al Nashiri is one of the 14 high-value detainees transferred to Guantanamo Bay in 2006 from the custody of the CIA, which subjected him to abusive interrogation techniques at foreign black sites. The Senate report on the CIA program said that CIA headquarters ordered “enhanced interrogation techniques” on al Nashiri, including waterboarding, even though interrogators on the ground believed he was being cooperative. The report also said that interrogators used unapproved techniques on al Nashiri, such as threatening his execution by means of a handgun and power drill, and suggesting they could capture and send his mother to a black site.

The discovery of the microphones by defense counsel in August 2017 derailed the USS Cole case for more than two years, sparking a sequence of events that was bizarre and dramatic even by Guantanamo military commission standards. The judge at the time, Air Force Col. Vance Spath, denied defense motions for discovery or to have an evidentiary hearing on the presence of the microphones. Al Nashiri’s lead attorney, Rick Kammen, and two other civilian lawyers requested to leave the case on ethical grounds in October 2017.

“We were in a position where we couldn't have any confidence that our communications with our client were private, where we knew that there were serious questions that we couldn't discuss with him,” Kammen explained to Lawdragon in an April 2018 profile.

The chief defense counsel, Marine Brig. Gen. John Baker, granted their requests to depart. Spath ordered Baker to change his mind and reassign the attorneys to the case. After Baker refused, Spath held him in contempt in November 2017, and ordered him confined to his Camp Justice quarters for 21 days. The Pentagon official who oversees the commissions freed Baker after two days, and the D.C. Circuit Court of Appeals later overturned the contempt conviction in June 2018.

By that point, Spath had departed the commission to take a job as an immigration judge, which is a position within the Department of Justice. After another protracted round of litigation over this development, the D.C. Circuit in April 2019 vacated two years’ worth of Spath’s rulings for a “disqualifying appearance of partiality” because he had been negotiating for a job with a government agency that had lawyers on the prosecution team.

Attorney-client meetings for most detainees take place in the “Echo 2” section of the detention facility. Al Nashiri’s team began litigating for a new space in 2013 after learning from him that he had spent time in that area when the CIA used it as a black site a decade or so earlier. Joint Task Force Guantanamo, which runs the detention operations, provided a new meeting location in April 2014, which the team used until June 2017, when its members came to suspect their meetings were being monitored.

Mizer told reporters that the defense team first became suspicious earlier that spring when a detention guard greeted one of al Nashiri’s lawyers, then Navy Lt. Cmdr. Jennifer Pollio, as “Ms. Jenny” – which is how al Nashiri referred to her in ostensibly private meetings. After an unrelated incident, Brig. Gen. Baker sent a memorandum to all defense teams in June 2017 stating that he had concerns about the confidentiality of attorney-client meeting spaces and recommending that teams halt meetings with their clients until they could investigate possible monitoring. Al Nashiri’s team inspected its meeting space in August 2017 and found a microphone. Prison staff later dismantled the site and found multiple microphones.

In court Tuesday morning, Mizer told Acosta that former team member Pollio – who now has the last name  Lubke – could testify in open court from the RHR about the “Ms. Jenny” episode because the matter is not classified.

"I believe with a little leeway, I could avoid even remotely eliciting anything that would be classified," Mizer said.

Prosecutor John Wells, a civilian lawyer with the Department of Defense who was also in court, countered that the government’s cross-examination "may touch on classified matters." After a closed session Tuesday, the judge determined that Lubke would have to testify in a classified session. That testimony was planned for Wednesday until possible Covid-19 exposure among the prosecution team at the RHR delayed the proceedings.

Most of the 90 or so witnesses are individuals who may have knowledge of the facts surrounding the presence of microphones in the meeting rooms. A smaller number of witnesses are also relevant to a related defense motion to disqualify the prosecution team for alleged misconduct over the handling of evidence and discovery from the microphone dispute.

Defense staff have been meeting with al Nashiri inside of the Expeditionary Legal Complex, which houses the courthouse and holding cells, since Natale joined the team in the Fall of 2019. In a separate motion not on the docket for this session, the team is also arguing for the right to inspect the location in which the current attorney-client meetings take place.

Al Nashiri’s case is the last of the pending military commissions to resume proceedings on Guantanamo Bay this summer. The first was the case again against Abd al Hadi al Iraqi, a detainee charged with war crimes in Afghanistan, which resumed in mid-July. Later in the month, detainee Majid Khan confirmed in court with his new military judge that he understood and accepted the revised terms of his plea agreement that could lead to his release early next year. At the end of August, the government arraigned in court three detainees charged with terrorist bombings in Indonesia in 2002 and 2003. This month, the most-high profile commission – the case against Khalid Shaikh Mohammad and four co-conspirators for alleged roles in the Sept. 11 terrorist attacks – resumed in the week leading up to the 20th anniversary of the attacks.

The new judge on that case, Air Force Col. Matthew McCall, cancelled the last day of that two-week hearing due to defense lawyers having possible exposure to a journalist who tested positive for Covid-19 after departing the U.S. Naval Base.

The use of the RHR for attorneys and staff unable or unwilling to travel to Guantanamo Bay – or in the case of al Nashiri’s hearing, for choice based on witness location – may reduce the Covid-19 risks generated by traveling. However, proceedings did not take place Wednesday because of a Covid scare associated with the RHR.  A commissions’ spokesperson said  that the parties were awaiting Covid tests from two members of the prosecution team. 

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.