By Tyler Pager and Paige Leskin
GUANTANAMO BAY NAVAL BASE, Cuba — Lawyers for the alleged mastermind of the bombing of the USS Cole argued Monday the case should be dismissed on the grounds that defense officials illegally forced the military judges to move to Guantanamo in an effort to speed up the trial.
The lawyers for Abd al-Rahim al-Nashiri, who is facing the death penalty, stated in their motion the convening authority has “no responsibility for or role in dictating the pace of litigation” and cannot influence the judges in the trial.
The convening authority, identified as retired Maj. Gen. Vaughn Ary, is in charge of ordering military commissions. Ary was appointed to the civilian position in September.
Judge Air Force Col. Vance Spath said he will consider Monday evening whether to resolve the unlawful influence issue before moving forward in the pretrial hearings to other motions.
The judge ordered the prosecution to turn over to the defense additional documents related to the motion, which include records of informal communications such as e-mails. The extra information will allow al-Nashiri’s lawyers to call any additional witnesses that could testify about Ary’s influence on the military judges. Spath asked for an updated witness list on Tuesday.
Spath asked the prosecution to contact Ary and see if he was available to testify Tuesday afternoon, either in person or via video.
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.
In documents unclassified Monday, the prosecution responded to the defense with a motion to dismiss the unlawful influence claim, arguing that al-Nashiri’s attorneys still did not have the facts to prove their case.