Defense lawyers Monday lost a bid to suspend proceedings at Guantanamo against the suspected mastermind of the USS Cole attack over revelations of outside government censorship.
The issue first arose last week in pre-trial hearings for five accused 9/11 plotters when Judge James Pohl disclosed that, without his knowledge, someone outside the court had cut an audiovisual feed of the proceedings after the subject of secret CIA prisons came up.
Pohl, insisting that he alone would control what would be censored in his court, ordered that the government's ability to censor the proceedings from outside be disconnected.
Lawyers for Abd al-Rahim al-Nashiri, a Saudi accused of directing the suicide attack on the Cole in Yemen in October 2000, raised the issue anew in a motion at the start of a hearing into their client's case.
The motion "to abate the proceedings in order to resolve the issue of third party monitoring of defense communications and censorship of commission hearings" was listed on the military commission's website, although its contents were sealed.
Judge Pohl rejected the motion, however, after confirming that the external monitor's ability to cut the video feed had been eliminated, as he had requested.
A lawyer for al-Nashiri, Stephen Reyes, also asked a witness testify to explain who's listening from "behind the curtain."
During the hearing, a meeting between the suspects and the prison authorities was set to settle the question of whether, as the defense alleges, conversations between suspects and their lawyers are listened to during prison visits and in court, even when the microphones are turned off.
The hearings at the US naval base in Guantanamo on the southeastern tip of Cuba are carried on closed circuit television with a 40-second delay to journalists, relatives of victims and human rights activists observing the proceedings from outside the courtroom.
The delay enables a security officer, seated next to the judge, to block the feed when the exchanges touch on matters that are considered classified.
But last week's incident was the first time the government was known to have intervened from outside the court to stop the feed without the judge's knowledge.
Like the accused 9/11 plotters, Nashiri was held by the United States in a secret CIA prison where he underwent harsh interrogations, something former CIA director Michael Hayden has acknowledged.
Considered close to Al-Qaeda leader Osama bin Laden, Nashiri faces the death penalty if convicted of charges stemming from the attack on the Cole, which killed 17 US sailors, and on the French oil tanker MV Limburg in 2002 in Aden, which left one person dead.
His defense has cost more than $560,000 so far, the Guantanamo prosecutor said Monday, in a statement asserting that Nashiri has "received robust legal representation."
General Mark Martins noted that the figure represents about double the average cost for the defense lawyers, staff, and expert witnesses, in a capital case in federal court.
Nashiri's lawyers have filed 75 motions for their client, he added, and have "represented him zealously in a sharply adversarial system essential to the fair administration of justice."