GUANTÁNAMO BAY, Cuba — A military judge on Thursday began hearing secret testimony about hidden microphones, allegations of eavesdropping and other government interference in the work of defense lawyers in the case of a Saudi man who is accused of masterminding the bombing of the Navy destroyer Cole in 2000.
About 85 witnesses, all but one unidentified, were being called to testify over eight days on the issue, which has been a major impediment to getting a trial underway since even before a 600-day hiatus in court proceedings caused by the coronavirus pandemic.
At a brief open session on Tuesday, the defendant, Abd-al Rahim al-Nashiri, responded “yes” and gave a thumbs-up when the Army judge, Col. Lanny J. Acosta Jr., asked if he understood that he did not have to attend open hearings.
The question was largely pro forma. Colonel Acosta soon closed the court, excluding both the defendant and the public from the hearing on how two recording devices ended up in a confidential legal meeting room where Mr. Nashiri convened with his lawyers for more than three years, and whether prosecutors deliberately misled the war court and an appellate court on the matter.
Concerns about whether government actors listened to conversations between Mr. Nashiri and his lawyers grew after a defense team investigator unscrewed a light-switch plate from a wall in their meeting room in 2017 and discovered a listening device hidden behind it.
That episode prompted three long-serving defense lawyers to abruptly quit the case after an earlier military judge forbade them from telling Mr. Nashiri about the discovery and seeking a potential ethics waiver because the recording system was classified.
Defense lawyers have accused prosecutors of misconduct over their handling of the question, claiming that they doctored documents to say that the microphone was “inoperable.” The defense discovered the changes in “unedited evidence” that prosecutors turned over in 2020 after a court order.
Prosecutors in the case have consistently denied any wrongdoing.
Defense lawyers were calling 25 witnesses and prosecutors had a list of more than 60 — including former prison guards, contractors and military lawyers who worked on detention operations. No hearing or trial has been closed for so long or heard from as many witnesses at the war court, which was set up after the Sept. 11 attacks. The testimony was to discuss American intelligence systems and activities at the U.S. Navy base prison, frustrating efforts by Mr. Nashiri’s lawyers to try to hold some testimony in public.
“Not only does the public and the defendant not see the witnesses, but the true identities of the witnesses are oftentimes withheld from the defense,” said the lead defense lawyer, Anthony J. Natale.
Mr. Nashiri, 56, is accused of orchestrating Al Qaeda’s suicide bombing of the warship during a port visit to Aden, Yemen, in 2000. Seventeen sailors died. His is one of two capital cases in the military commissions system, alongside the attempt to prosecute five detainees who were arraigned in 2012 on charges of aiding the Sept. 11 attacks. Both cases have been stuck in pretrial hearings.
It was Mr. Nashiri’s first court appearance since January 2020. The 39 men currently held at the wartime prison spent much of the first year or more of the pandemic in isolation with no visits from their lawyers and limited access to other prisoners and Army guards to prevent an outbreak at the remote base of about 6,000 residents.
The pandemic continues to hamper progress at the war court. The proceedings were canceled on Wednesday after two prosecutors who had participated in the case from a courtroom annex in Crystal City, Va., developed symptoms of the coronavirus. The remote courtroom was set up during the pandemic, and all but two of the witnesses were being called to testify from there to avoid the need to send unvaccinated witnesses to Guantánamo two weeks early for a mandatory quarantine.
Defense lawyers have described a pattern of suspected eavesdropping on confidential attorney-client communications, and call it government intrusion into their ethical duty to safeguard their work, particularly in a death penalty case.
In December 2013, Mr. Nashiri told his lawyers that the cell where they had been meeting since 2008 had been part of a secret C.I.A. prison, where he had been held in off-the-books detention in 2003-04. Soon after that conversation, prosecutors responded to an 18-month-old request from Mr. Nashiri’s lawyers for information about the meeting compound. Camp Echo II, as it was called, had been used as a black site.
By then, lawyers had discovered that a device that resembled a smoke detector in a Camp Echo meeting room was in fact a listening device. Prosecutors brought military commanders to testify in open court that nobody was listening to conversations between the detainees and their lawyers.
Defense lawyers said the use of the black site itself re-traumatized Mr. Nashiri because he was tortured during his 2002-06 detention by the C.I.A. In response, Mr. Nashiri and his lawyers were assigned to a different meeting site, the one that had two hidden microphones, at Camp Delta.
Also in 2017, a former Nashiri defense lawyer, Cmdr. Jennifer Pollio Lubke, was surprised when an enlisted soldier serving on guard duty called her “Miss Jenny” rather than “Commander Pollio.” Defense lawyers claim that Mr. Nashiri called her “Miss Jenny,” but only in confidential communications, and the soldier should not have known her nickname.
Commander Lubke, who currently works at the Defense Intelligence Agency, was to testify this week, at the request of Mr. Nashiri’s lawyers, as the only open court witness. But a prosecutor, John Wells, said his questions would involve prison secrets and asked the judge to close the court. He agreed.
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