GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - The Pentagon official overseeing the Guantanamo tribunal tried to rig the jury selection process to boost the odds of obtaining a death sentence for a prisoner accused of directing a deadly attack on a U.S. warship, defense lawyers alleged on Thursday.
They asked the judge to drop the charges against Saudi defendant Abd al Rahim al Nashiri, an alleged al Qaeda chieftain who is accused of choosing and supplying the suicide bombers who drove a boat full of explosives into the side of the USS Cole off the coast of Yemen in 2000. The blast killed 17 sailors and wounded dozens more.
The judge, Army Colonel James Pohl, did not rule on the request before a pretrial hearing ended on Thursday at the Guantanamo Bay U.S. Naval Base.
But he suggested that if there has been an attempt to exert improper influence, the remedy would be to follow regular U.S. court-martial procedures for jury selection rather than dismiss the charges.
The defense complaints focused on retired Vice Admiral Bruce MacDonald, the Pentagon appointee overseeing the war crimes tribunals. He decides which cases are referred to trial, whether defendants will face the death penalty, and which military officers will make up the jury pool.
When he referred Nashiri’s case for trial on capital charges that include murder, attempted murder and terrorism, he included specific instructions on how the judge was to carry out jury selection, something the defense characterized as unprecedented bureaucratic meddling in matters usually left to the trial judge.
MacDonald limited the number of challenges the lawyers could use to dismiss jury candidates, and capped the number of jurors at 12.
A conviction and death sentence would require unanimous decisions by at least 12 jurors, so U.S. military courts typically empanel 14 or 15 to make sure they do not drop below the quorum if someone gets sick or has to drop out during a long trial, said Lieutenant Commander Stephen Reyes, one of Nashiri’s lawyers.
MacDonald’s instructions allow for the selection of alternate jurors who would not vote unless the panel was reduced to fewer than 12, thus keeping to an absolute minimum the number of jurors the prosecution would have to win over.
“That is a panel that numerically favors a death sentence,” Reyes said.
The chief prosecutor, Brigadier General Mark Martins, disputed there was anything improper or prejudicial and said MacDonald was merely exercising the authority given to him.
Defense lawyers also asked that the charges be thrown out on grounds that MacDonald was improperly appointed. They said he had so much authority - and no boss - that the appointment should have required Senate approval.
The judge didn’t rule on that request either but he did shed a little light on what happened during a closed-hearing on Wednesday. The defense had asked that the prosecution be ordered to turn over secret evidence related to Nashiri’s arrest in Dubai in 2002 and his four-year detention in secret CIA prisons before his transfer to Guantanamo in 2006.
Pohl met privately with the lawyers to debate whether that could be discussed in open court without revealing national secrets. He said Thursday that he had postponed arguments on the matter until the next pretrial hearing, which starts on October 23.
The defense has regularly called the Guantanamo tribunals unfair and defense attorney Rick Kammen, who calls them a kangaroo court, wears a golden kangaroo pin on his lapel.
The long delay in bringing Nashiri to trial and the defense criticism of the tribunal have infuriated relatives and sailors who lost loved ones and colleagues in the attack on the Cole.
A small group has made repeated trips to the remote Guantanamo base to attend Nashiri’s pretrial hearings. Some spoke to journalists after the hearing.
Saundra Flanagan, whose son Petty Officer 1st Class Kevin Rux was killed aboard the Cole, called the defendant and his alleged al Qaeda conspirators “damn dastardly, cruel and mean.”
She said it may take a while longer to see justice done but “we’ll be there waiting and watching and listening and praying for the best outcome.”
Editing by Kevin Gray and Philip Barbara