GUANTANAMO BAY U.S. NAVAL BASE, Cuba: Lawyers for a Guantanamo prisoner accused of masterminding the deadly attack on the USS Cole asked on Wednesday for government records about a U.S. drone strike that killed another man identified as the mastermind of the attack.
The request came in a pretrial hearing in the case against Yemeni defendant Abd al Rahim al Nashiri, who is accused of sending suicide bombers to ram a boat full of explosives into the hull of the USS Cole off Yemen in October 2000, causing a blast that killed 17 U.S. sailors and injured dozens more.
Defense lawyers in the war crimes tribunal at the Guantanamo Bay U.S. Naval base in eastern Cuba have asked for all U.S. government records about the CIA drone strike that killed Qaed Salim Sinan al Harithi, an alleged al Qaeda leader in northern Yemen, in November 2002.
Several news accounts at the time said Harithi was targeted because Washington believed he orchestrated the attack on the Cole.
The documents outlining why Harithi was killed could bolster the defense in Nashiri's death penalty case, especially if they showed that any involvement on his part was lesser than that of Harithi, defense attorney Rick Kammen argued.
"Mr. al Harithi was so much more culpable that he was sentenced to death by the United States without benefit of trial," Kammen said.
One of the prosecutors, Navy Commander Andrea Lockhart, said the government had already turned over all the documents it considered relevant, or was in the process of doing so.
Kammen said a court order from the judge might prompt a more diligent search for records about the drone strike, suggesting the CIA might not have turned over all those in its possession. The judge, Army Colonel James Pohl, did not indicate whether he would issue the order but seemed agreeable.
"Is there any harm to look again for this one?" he asked prosecutors.
Nashiri, 47, is an alleged al Qaeda chieftain charged with murder and attempted murder in violation of the laws of war, conspiracy, treachery, destruction of property, causing serious bodily harm and terrorism. He could face the death penalty if convicted.
A clean-shaven man with short-cropped black hair, he wore a gray blazer and white tunic and trousers to the hearing and listened through earphones to an Arabic-English interpreter.
Nashiri skipped Tuesday's court session. The judge ordered him to attend on Wednesday to ensure he understood that his defense could suffer if he was not there to assist.
Nashiri said the chains used during transport from his cell to the court building were painful and aggravated his bad back.
"Security must have a limit," he told the judge. "I do intend to attend all future sessions. But if the guards do not treat me better, I have the right not to come. I let the world know that the judge sentenced me to death because I didn't show up to court due to chains. Thank you."
His lawyers said the chains "re-traumatize" him and remind him of the torture he endured while shackled in secret CIA prisons before he was brought to Guantanamo in 2006.
The U.S. government has acknowledged that Nashiri was waterboarded and that interrogators deprived him of sleep, threatened his family, blindfolded him and revved a power drill next to his head, among other things.
The defense lawyers said that although Nashiri could be executed if convicted, the outcome of the trial may not matter since the U.S. government has said it could detain Guantanamo prisoners indefinitely even if they are acquitted at trial.
"He's going to die in Guantanamo either way. It's just a question of when," Kammen told journalists before the hearing.