A military judge has rejected a Guantánamo captive’s request to have his lawyers question Yemeni leader Ali Abdullah Saleh in New York about the investigation of al Qaida’s bombing of the USS Cole, a lawyer said Tuesday.
Both the original request to question Saleh, now in New York for medical treatment, and the judge’s decision are under seal at the Pentagon’s war court. The State Department’s legal advisor opposed the subpoena on grounds that Saleh has diplomatic immunity while in the United States recovering from burns suffered this summer in an attack on his palace mosque.
Lawyers for captive Abd al Rahim al Nashiri, 47, argued Saleh was intimately involved in the investigation following the October 2000 attack that killed 17 U.S. sailors off Yemen’s port of Aden. Nashiri is charged with murder for allegedly orchestrating that attack, and could face military execution if convicted.
But the chief Guantánamo war court judge, Army Col. James Pohl, rejected Nashiri’s lawyers’ requests to compel Saleh’s cooperation in a war court deposition. Pohl’s ruling Monday provided no explanation, said Nashiri attorney Lt. Cmdr. Stephen Reyes.
The Yemeni leader departs the United States later this month before his country elects a new president and Saleh’s diplomatic immunity could expire.
Reyes said the Nashiri team was trying to decide whether they could appeal Pohl’s decision. “Our inability to have his testimony available at trial, or to have him testify at trial,” Reyes said Tuesday, “greatly prejudices our ability to mount a capital defense in the case.”
Pohl has scheduled the next hearing in the case for April. But in a separate sealed order this week the judge forbade Guantánamo screeners from divulging to anyone but himself information gleaned from confidential legal mail between Nashiri and his lawyers.
The judge’s solution is designed to resolve a dispute that the Guantánamo camps commander, Navy Rear Adm. David B. Woods, sparked last year by having staff search captives’ legal mail for “information contraband” and “incendiary” magazines, such as copies of the al Qaida magazine Inspire.
The Pentagon’s chief defense lawyer, Marine Col. Jeffrey Colwell, declared the search policy a violation of the attorney-client privilege because the admiral, in effect the warden, was trying to regulate what lawyers bound by their own ethical obligations could discuss with their clients.
Colwell instructed his team of Pentagon defense lawyers to stop sending privileged communications to their captive clients, slowing if not stalling case preparation at the war court.
Pohl’s decision only resolves the Nashiri dispute. The five accused Sept. 11 plotters, for example, haven’t been formally charged, and have no judge. So, absent a judicial order, Woods’ staff order to review the mail of all other captives is in place.
Nashiri’s attorney, Reyes, said under the latest order, the review team must now sign a non-disclosure in the case that bars them from discussing the contents with anyone but the defense lawyer or judge. If the judge concludes that any information is a threat, he could then contact the camps commander.
Separately, the Pentagon said without explanation Tuesday that Woods was being reassigned to San Diego as commander of strike force training for the Pacific.
The career Naval officer whose specialty has been jamming enemy radar systems just took over as the 11th camps chief in August. No successor was named. But depending on when Woods departs, his tenure could be one of the shortest at the 10-year-old detention center.
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