A prosecutor told the judge in the USS Cole bombing case this week that the government expects many of its witnesses to testify at Guantanamo’s first-ever death penalty trial by video feed, probably starting early next year.
Lead prosecutor Clayton Trivett said in a pretrial hearing on Sept. 23 that the government has a witness list of about 130 people for the trial of Abd al-Rahim al-Nashiri, a Saudi man who is accused of a key planning role in the suicide attack that killed 17 U.S. sailors off the coast of Yemen in October 2000.
By law, only those witnesses who are currently in the U.S. military or actively employed by the U.S. government can be compelled to come to the courtroom in Guantanamo. But the al-Qaeda attack happened more than a quarter century ago. So many of the prosecution witnesses have retired or left government service, meaning they can only be subpoenaed to sites in the United States.
Traveling to Guantanamo, in southeast Cuba, can be complicated, uncomfortable, and traumatizing for civilian witnesses. Some are expected to refuse to make the trip. In these cases, Trivett said prosecutors plan to subpoena witnesses to a video suite at a Defense Department building in Alexandria, Va., and may also arrange for live testimony from video feed sites at military bases and other government offices elsewhere in the United States.
Defense lawyers have argued that, especially in the instance of a capital trial, a jury should get the benefit of in-person testimony. Jessica Manuele, representing al-Nashiri, said the remedy would be to put al-Nashiri on trial in the United States, where the prosecution could subpoena witnesses to the courtroom. Military commission trials are not restricted to Guantanamo, she said.
The judge, Army Col. Matthew Fitzgerald, was not persuaded. In January he denied al-Nashiri’s lawyers’ request for a change of venue, citing federal law that specifically prohibits the use of U.S. funds to move the post-9/11 wartime detainees at Guantanamo to the United States.
Manuele said, when weighed against a defendant’s constitutional right to confront a witness testifying against him, the judge should view the federal law prohibiting al-Nashiri’s transfer to U.S. soil as unconstitutional.
Court technicians have installed a large video screen above the witness box in the capital courtroom at Guantanamo for remote testimony. Witnesses living in the United States who even refuse to testify at the U.S. sites can be compelled to do so through a writ of attachment sworn out by the chief prosecutor, Trivett said. U.S. Marshals would bring that person to an approved location.
Prosecutors are also developing an alternative method for witnesses who consider leaving home a hardship, for example because they are caring for a relative. In those instances, a prosecution staff member can set up a laptop equipped with a secure conferencing capability at a witness’s home and connect them to the court.
A Sept. 22 test run of that idea showed that capacity is still a work-in-progress. The image of a proposed expert witness went in and out of focus and was frequently inaudible as he testified from his home in Virginia.
The trial’s witness list is sealed. But based on pretrial proceedings, the government expects to seek testimony from now-retired federal agents who investigated the bombing in Aden, Yemen; scholars who became experts on al-Qaeda after the 9/11 attacks; and sailors who survived the attack. But Trivett said some of those retired Cole shipmates are wavering on whether they want to testify because they suffer from post-traumatic stress disorder.
Two other witnesses include U.S. citizens who have been convicted of providing material support for terrorism and have completed their sentences. Even if they agree to testify in person, it would be up to Navy Capt. Michael Stephen, the commander at Guantanamo’s naval station, to decide whether to waive base security policy and allow former federal prisoners on his 45-square-mile base of about 4,500 residents.
Trivett also said the government is seeking testimony from a federal convict, but it was unclear where the U.S. Marshalls would bring that witness.
Guantanamo’s is a commuter court, meaning the judge, lawyers, and courtroom personnel travel to the base for the proceedings. Only the prisoner and soldiers serving as guards stay when the court is not in session. Jury selection is scheduled to begin Oct. 19 with an initial jury pool of 36 U.S. military officers brought to the base. Another 300 more pool members could follow in groups of 18 until a jury of 12 members and six alternates is selected. Several developments could derail the start of jury selection, including an evaluation of the defendant’s mental capacity to stand trial, which is being conducted by an Army psychiatrist serving as a Sanity Board.
The USS Cole case is the longest running capital prosecution at Guantanamo and should be the first to be tried at the post-9/11 military commissions system.
The military judge in the 9/11 conspiracy case has scheduled that trial to start on June 5, 2028. Four men including lead defendant Khalid Shaikh Mohammed are charged. Their case returns to court in December. A fifth defendant, Ramzi bin al-Shibh, was found mentally incompetent to stand trial.
