GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - A U.S. military judge ordered the commander of the Guantanamo detention camp to testify on Tuesday about orders he gave that limit the mail prisoners can receive from their lawyers.
The dispute about the handling of confidential legal correspondence pits military jailers against military defense lawyers even as the military prepares to expand the number of Guantanamo prisoners facing war crimes charges that could eventually lead to their execution.
The judge, an Army colonel, cannot compel the prison camp commander, a Navy admiral, to change the mail policy. But he could halt the prosecution of an alleged al Qaeda bomber accused of murdering 17 U.S. sailors if he believes the policy violates prisoners’ rights to a fair trial or puts defense lawyers in an ethical bind.
Prosecutors in the trial of Saudi captive Abd al Rahim al Nashiri have asked that his mail be subject to the same screening procedures that the camp commander, Rear Admiral David Woods, imposed last month for the other 170 men held captive at the Guantanamo Bay U.S. naval base in eastern Cuba.
Under Woods’ order, only documents that were originated by defense lawyers and signed by them can be delivered as legal mail, and even those are subject to a cursory scan by a review team.
Anything else must be sent by regular U.S. mail, and is subject to redaction or rejection by censors. Defense lawyers say the rule is so narrow that they would be prohibited from sending their clients a copy of the law pertaining to their case, or the resumes of expert witnesses called to testify on their behalf.
The lawyers contend that the order violates confidentiality rules and forces them to illegally disclose trial strategy, violating the defendants’ right to a fair trial. It is also an ethical violation that potentially could put their own law licenses in jeopardy, they said.
“We cannot follow this order,” Nashiri’s military lawyer, Navy Lieutenant Commander Stephen Reyes, said in the high-security courtroom on Tuesday.
The chief defense counsel for the Guantanamo tribunals, Marine Colonel Jeffrey Colwell, has ordered defense lawyers to stop sending confidential mail to their clients while the order is in effect.
Another military lawyer representing one of five prisoners accused of plotting the September 11, 2001, attacks filed suit in a federal appeals court accusing the prison of violating his client’s right to a fair trial.
Death penalty charges against those five prisoners are expected to be approved for trial within weeks, and new charges are also expected soon for other Guantanamo prisoners.
At present, Nashiri is the only one facing charges in the tribunal system that operates outside the rules applied to regular civilian and military courts.
He is accused of orchestrating the October 2000 attack that killed 17 U.S. sailors and injured dozens more aboard the USS Cole. Suicide bombers rammed a boat full of explosives into the side of the American warship while it refueled in the Yemeni port of Aden, blowing a gaping hole in its side.
Nashiri is charged with war crimes including murder, attempted murder, conspiring with al Qaeda and attacking civilians and could be executed if he is convicted.
He is also accused of launching a bomb attack on a French oil tanker, the MV Limburg, off the coast of Yemen in October 2002, an attack that killed a Bulgarian crewman.
A Pentagon spokesman explained for the first time on Tuesday how the United States has jurisdiction to try Nashiri on that charge.
Nashiri is considered an unprivileged enemy belligerent, meaning he is part of a group that operates outside the structure of a regular army and launches attacks against civilians.
Under the Military Commissions act underpinning the Guantanamo tribunals and under the international laws of war, that gives the United States “universal jurisdiction” to try him no matter where an attack occurred, said Army Lieutenant Colonel Todd Breasseale.
Editing by Tom Brown and Eric Beech