A group of detainees kneels during an early morning Islamic prayer in the US military prison at Guantanamo Bay.
Credit: John Moore

GUANTANAMO BAY NAVAL BASE, Cuba — The judge in the trial of the alleged mastermind behind the USS Cole bombing Monday ruled in favor of hearing testimony from the senior Pentagon official who has ordered the judge to move to Guantanamo to speed up the trial.

Air Force Col. Vance Spath, the judge presiding over the trial of Abd al-Rahim Al-Nashiri, ruled in favor of the defense team’s request to have the convening authority for the trial, retired Maj. Gen. Vaughn Ary, explain why he wants Spath to move to Guantanamo. Ary, as the civilian who oversees the trial, is responsible for ordering military commissions for the prosecution of Guantanamo detainees.

Al-Nashiri, who is charged with multiple war crimes, has been held at Guantanamo since 2006. He is one of five high-level detainees identified in the Senate’s 2014 CIA torture report as having been subject to torture and interrogation methods, such as waterboarding and rectal feeding.

The convening authority's effort to speed up the trial may actually result in the opposite. Al-Nashiri's hearing could be stalled until the commission receives Ary’s testimony, since Spath has not yet made a decision on whether other motions could be heard before the unlawful influence motion is settled. A delay of the hearing could push back the trial even further, which is exactly what Ary was trying to avoid.

That means the trial of one of Guantanamo's highest-profile detainees, who was first arraigned in 2011, is still months or maybe even a year away. Navy Cmdr. Brian Mizer, one of al-Nashiri’s lawyers, argued Spath should not be told how to run his case. He said Ary’s order is “naked unlawful influence.”

Spath ordered the prosecution to turn over additional documents related to the unlawful influence motion, including email correspondence. He said the defense would have the opportunity to ask for additional witnesses after they finish reading the documents. In court Monday, the defense asked to hear from multiple witnesses, but Spath only approved testimony from Ary.

Spath asked the prosecution to see how soon Ary can testify in person or via videoconferencing.

Prosecutors asked Spath if he believed Ary’s order would affect his ability to preside over the case.

“I don’t know,” Spath answered, although he noted that it was clear the prosecution played no role in the order to have him moved to Guantanamo. Despite the order, Spath has not yet moved to Guantanamo.

Throughout the trial, al-Nashiri was calm and relaxed. Before and after the trial, he hugged the members of his defense team, laughing and joking with them.

The 50-year-old Saudi citizen was captured in 2002 and is facing execution if convicted of the Cole bombing and other terrorist activities.

The judge and lawyers will meet Tuesday at noon for a closed session when the prosecution will give an update on Ary’s availability. The judge is also expected to decide by Tuesday afternoon whether other motions can be heard.

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