GUANTANAMO BAY NAVY BASE, Cuba — A military judge announced Tuesday that defense attorneys could call former top CIA officials as witnesses in their bid to derail the death-penalty trial of the alleged USS Cole bombing plotter, who was waterboarded in the spy agency’s secret prison network, the Black Sites.
Air Force Col. Vance Spath, the judge, said he would issue a written ruling later.
Defense lawyers for Abd al Rahim al-Nashiri argued in court in December for four witnesses:
Former CIA General Counsel John Rizzo and Jose Rodriguez Jr., the spy agency’s clandestine service chief who in 2005 ordered the destruction of the videotapes over Rizzo’s advice — as well as James Mitchell and Bruce Jessen, psychologists who both designed and implemented the interrogation techniques captured in the destroyed videos.
Nashiri, who is Saudi, is accused of overseeing the Oct. 12, 2000, suicide bombing of the U.S. Navy warship off Aden, Yemen, at the behest of Osama bin Laden. Seventeen sailors died in that attack, and dozens more were wounded.
Spath said he agreed to let defense lawyers call the witnesses but did not specify whether he would hear from all four of them. None of those men have ever testified in a court.
Defense lawyers argue that Rodriguez’s decision to destroy the videotapes deprives Nashiri of critical evidence he needs for a fair trial. In December, defense attorney Rick Kammen argued for pretrial testimony from the four men about both about the tapes’ destruction and their contents in a motion to abate, or suspend, the trial over the illegal destruction of the videotapes.
The lead prosecutor, Mark Miller, called the testimony irrelevant and the issue premature. Once the government turns over all the evidence the defense lawyers seek, he said, there would be time for a motion to dismiss over outrageous government conduct, if appropriate.
