Guantanamo judge says detainee's trial won't begin for a year

McClatchy NewspapersApril 7, 2010 

GUANTANAMO BAY, Cuba — A Navy judge said Wednesday that it will take her nearly a year to sift through classified evidence before she can begin the military trial of a Sudanese man who's been held at the U.S. prison camp for terrorist suspects since 2002.

Navy Capt. Moira Modzelewski's timetable brought objection from the attorney for Noor Uthman Mohammed, who prosecutors say ran a terrorist training camp in eastern Afghanistan, and underscored the likely difficulties of bringing to a quick end the cases of five Guantanamo prisoners whose trials before a military commission were authorized in November by Attorney General Eric Holder.

"It is plainly unacceptable," Howard Cabot told reporters after the hearing. "Noor has been here for eight years now.''

Cabot said, however, the lengthy process could bring to light classified evidence that might be favorable to Noor.

Opponents of military commissions have criticized the military system as untested and argued that civilian courts have a lengthy track record of dealing efficiently with issues of secrecy under the federal court's Classified Information Procedures Act. Advocates of the war courts argue that the commissions are better equipped to shield sensitive information from the accused, the public and the defense lawyers.

Under the Military Commissions Act of 2009, prosecutors can introduce summaries of classified evidence, rather than the evidence itself. Those summaries must be reviewed by a judge for accuracy, however, and defense attorneys have the right to challenge the submissions.

Modzelewski said prosecutors were proposing to substitute so much classified evidence in the Noor case that it would take until January or February for her to review the summaries.

"All of these cases involve a substantial amount of classified material, and the judge's comment on the length of time in the Noor case is reflective of the fact that the Noor case and the other cases have a substantial amount of classified material that needs to be reviewed," said Navy Capt. John F. Murphy, the chief war crimes prosecutor. "Each case is different and some move faster that others; some have more classified discovery than others."

Prosecutors have charged that from 1996 to 2002, Noor trained, taught and at times helped manage the Khalden training camp as part of a broad conspiracy with al Qaida to murder and support terrorism.

The Noor hearing was the first military commission proceeding this year and took place in a secret court complex built especially for the trials of alleged 9/11 mastermind Khalid Sheik Mohammed and four accused co-conspirators. In November, however, Holder ordered that they be tried in civilian court in Manhattan, though New York officials have objected and the decision has yet to be affirmed by the White House.

Noor appeared at the hearing in the white uniform reserved for cooperative detainees. Equipment designed to prevent the accidental release of classified information by allowing a censor to cut off sound to the separate spectators' gallery where reporters are seated went unused.

Noor was captured in Pakistan in March 2002 along with a dozen or more captives who rounded up at the same time as a better known detainee now held here, Zayn al Abdeen Mohammed Hussein, better known as Abu Zubayda.

Abu Zubayda, who's never been charged with a crime, was waterboarded by the CIA and subjected to a series of experimental harsh interrogation techniques in secret detention. In September 2006, then-President George W. Bush described him as a prized war-on-terror catch "and trusted associate of Osama bin Laden.''

Declassified documents say Abu Zubayda has told interrogators that Khalden was a rival to training camps run and sanctioned by bin Laden, wasn't associated with al Qaida, that it was first set up by the U.S.-backed resistance to the Soviet invasion of Afghanistan and was committed to a defensive, not offensive, jihad.

Much of Wednesday's session was devoted to the question of whether an Army reserve officer, Maj. Amy Fitzgibbons, would be permitted to continue to defend him.

Fitzgibbons, Noor's first Pentagon-appointed defense lawyer, is now based in Washington state. She's asked to continue representing Noor, along with Cabot, but her Army colonel supervisor rejected her request.

Modzelewski ruled that she "regrettably does not have the authority to fix this problem.''

She "strongly recommended,'' however, that Fitzgibbons' current Army boss and the Pentagon war court defense office find a way to "accommodate'' her request to continue defending Noor.

(Rosenberg reports for The Miami Herald.)

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