The chief judge in the Guantanamo war crimes tribunal refused on Tuesday to step aside from the trial of a prisoner accused of orchestrating the suicide-bomb attack that killed 17 U.S. soldiers aboard the warship USS Cole in 2000.
The judge, Army Colonel James Pohl, rejected defense arguments that the public might perceive him as biased toward protecting the U.S. government bureaucracy to preserve his own paycheck. He said they had shown no evidence of actual bias.
"A reasonably informed observer in possession of all the facts would not question my impartiality," Pohl said.
Pohl's ruling came in the case of alleged al Qaeda chieftain Abd al Rahim al Nashiri, who is accused of selecting and directing the two suicide bombers who drove a boat full of explosives into the side of the Cole in the Yemeni port of Aden in October 2000, killing 17 sailors and wounding dozens more.
Nashiri, a 47-year-old Saudi of Yemeni descent, is charged with murder, attempted murder, conspiracy and terrorism. He faces the death penalty if convicted.
The case is expected to be the first capital case to go to trial in the special tribunals at the remote Guantanamo Bay U.S. Naval base in eastern Cuba.
Defense attorney Rick Kammen argued unsuccessfully in a pre-trial hearing that Pohl had a financial interest that could affect his impartiality.
JUDGE RECALLED FROM RETIREMENT
The 61-year-old judge was recalled from retirement and his contract is subject to annual renewal in September. His $10,577 monthly pay would drop by about 20 percent if he returned to retirement.
"I don't think anyone can dispute that 20 or 25 percent of a judge's income is significant," Kammen said.
As chief judge, Pohl has assigned himself to handle all of the cases brought so far against "high-value" prisoners who were held in secret CIA prisons before being sent to Guantanamo in 2006.
He is presiding in the pending death-penalty case against five men charged with plotting the September 11 attacks on the United States that killed 2,976 people in 2001. He also oversaw the February guilty plea by Majid Khan, an al Qaeda money courier who is expected to testify as a prosecution witness in the 9/11 case.
Kammen said the cases were perceived by much of the general public as "no-fail missions" where the tribunal must produce convictions in order to justify and conceal the alleged torture of the defendants while they were in CIA custody.
"There's certainly a lot of the public who believe that the reason we're in Guantanamo is to keep things secret," Kammen said.
He said the process might be perceived as more fair if more than one judge was involved.
“"When only one judge presides over all the cases, at best, your honor, what you have is a process that is only seen through one prism," Kammen argued.
The prosecution characterized the defense argument as conjecture and innuendo lacking in legal basis and specific facts, and the judge concurred.
KEEP SECRETS OUT OF THE COURTROOM
At the hearing, Nashiri, a round-faced man with closely cropped black hair, wore a gray blazer over a white tunic and trousers. He listened through headphones to an Arabic translation of proceedings, resting his chin in his hand and swiveling in his chair under the watchful eyes of a row of military guards.
The defense asked the judge to let them hire a lawyer with expertise in classified documents and a memory expert to help challenge witness recollections of events that occurred 12 years ago.
The judge deferred ruling on those requests but asked both sides to tally up the number of lawyers, paralegals and experts at their disposal and report back to him.
The defense, which includes a civilian death penalty expert paid by the Pentagon, contends that it is vastly outgunned by the prosecution, which includes Justice Department lawyers and representatives of several other government agencies.
The lawyers were to meet privately with the judge on Wednesday to discuss whether classified information can be mentioned in court. Pohl encouraged them to agree on euphemisms or find other ways to avoid mentioning secrets that would force him to close the court to the press and other spectators.
“"I want to minimize closure," he said.
One of the prosecutors, Anthony Mattivi, confirmed for the first time that the government planned to use some of Nashiri's own statements against him.
That is bound to provoke defense objections, since Nashiri was subjected to water boarding, mock executions and other abuse while in CIA custody. By law, his statements cannot be used as evidence if they were obtained through torture or cruelty.
(Editing by Kevin Gray; Editing by David Brunnstrom)