A military judge abruptly canceled pretrial hearings in the USS Cole bombing case at Guantanamo Bay, Cuba, on Wednesday after the case’s skilled death-penalty defense lawyer had a health emergency and left the base.
Col. Matthew Fitzgerald, the judge, had scheduled this week’s hearings to work out some final details before jury selection, which is scheduled to start on Oct. 19. But Allison Miller, representing defendant Abd al-Rahim al-Nashiri, departed the base on a military flight for Florida for what was described as an urgent cardiac workup.
Al-Nashiri is accused of a key role in the suicide bombing of the warship off Yemen on Oct. 12, 2000 that killed 17 sailors and wounded dozens of others. A Saudi citizen, he has been held by the United States since 2002 and is charged in Guantanamo’s longest-running capital case.
The episode was the latest illustration of the limited healthcare capacity at the U.S. military installation in southeast Cuba, which has about 4,200 residents and a small community hospital, and routinely medically evacuates patients to Florida for tests and treatment. Last month, a military judge in a different case was medically evacuated to the United States for reasons that have not been disclosed.
It was unclear what impact the defense lawyer’s early departure would have on the judge’s plans to start jury selection next month. The jury will be selected from a pool of roughly 350 U.S. military officers who are stationed both in the United States and overseas. The military has plans to bring the first 36 pool members to Guantanamo the week of Oct. 19, with the others on standby to be brought down in following weeks until a panel of 12 jurors and six alternates has been formed.
Another development has also cast doubt on when the trial will start. A military psychiatrist is conducting a court-ordered evaluation of the defendant’s fitness to face trial with a deadline of Oct. 16. The judge ordered the so-called Sanity Board after a Pentagon-paid defense expert, the forensic psychiatrist Terry Kuper, examined al-Nashiri last month and found him mentally incompetent to stand trial.
While in its custody, the CIA waterboarded al-Nashiri and subjected him to other brutal treatment from 2002 to 2006. The defense expert also diagnosed al-Nashiri with a traumatic brain injury that his lawyers blame on his abuse in CIA custody and a neurocognitive disorder. An earlier military medical board found him to have post-traumatic stress disorder (PTSD) and a major depressive disorder.
Judge Fitzgerald had held a classified hearing on Monday over secret CIA evidence that prosecutors want to show the military jury at trial. That hearing was closed to both the public and the defendant and followed a week of open court hearings with legal observers and Cole bombing survivors watching from the spectators’ gallery.
Miller is al-Nashiri’s third capital defender and has been on the case for two years. Case preparation was also stalled last year when Miller suffered a pulmonary embolism. The first capital defender, Richard Kammen, quit the case in 2017 after a defense team member discovered a listening device in their attorney-client meeting room at the prison. His successor, Anthony Natale, retired.
