Editor’s note: This story has been updated to correct attribution for a comment questioning a conflict of interest claim.
Two decades after his arrest, the suspected organizer of a deadly 2000 al-Qaida attack on a U.S. Navy warship faced the possibility of further delays of his Guantanamo trial after his defense lawyer on Monday pressed to be allowed to leave the case over an alleged conflict of interest.
Guantanamo detainee Abd al-Rahim al-Nashiri faces a possible death penalty in the killing of 17 U.S. sailors, who died when an explosives-laden skiff blew up alongside the USS Cole off Yemen.
Proceedings before the military commission have been mired in delays and in legal challenges over admissibility of evidence from the torture-aided interrogations of Nashiri and over other circumstances of his trial and detention. Captured in 2002, Nashiri underwent waterboarding, beatings and confinement in a crate in years of CIA custody at clandestine detention facilities.
Questions over the handling of Nashiri’s case, like those of five fellow Guantanamo Bay detainees accused of planning and aiding al-Qaida’s 9/11 attacks on the United States, have led to a military court still wading through pretrial hearings, constitutional debates and other problems.
There is increasing talk of plea bargains to end all the cases. But it remains unclear where defendants would serve out any sentences.
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On Monday, Nashiri’s top military lawyer, Navy Capt. Brian Mizer, pressed Judge Col. Lanny Acosta Jr. to allow Mizer to withdraw as Nashiri’s attorney, alleging he had a conflict of interest that should bar him from serving on Nashiri’s team.
The alleged conflict concerns Mizer’s past defense work for a former Guantanamo detainee, Salim Hamdan, an alleged driver for Osama bin Laden. Prosecutors of Nashiri propose to introduce a statement from Hamdan, who is now in Yemen after serving his sentence. It’s expected to allege that Hamdan heard Nashiri talking about arranging the attack on the Cole.
Mizer also had information regarding Hamdan’s case that Nashiri’s defense team should have, but that he could never ethically disclose given his attorney-client confidentiality with Hamdan, Mizer told the judge.
“Red lines have been tripped,” said Mizer, who was appointed by the military to defend Nashiri. “I have gone as far as I can ethically go ... to assist this defense team.”
Acosta, the judge, grilled Mizer on why he was pressing to withdraw only after years on Nashiri’s defense in the now 22-year-old attack.
“Raising of this issue now — it’s questionable why it’s raised now,” Acosta said, waving an index finger sternly at one point.
Nashiri, in court in Guantanamo in a shirt and gray jacket, spoke up, with the judge’s permission.
“Based on my understanding there is a conflict with Mr. Mizer. At the same time, I need him. I do not know how this is resolved,” Nashiri said, spreading his hands wide in the air.
The military provided closed circuit video of the Guantanamo proceedings at the Pentagon and elsewhere.
The judge said Monday pretrial consideration of whether Hamdan’s hearsay testimony against Nashiri could be used in the case would happen no sooner than February 2023.
Acosta also directed Mizer to tell him by Monday, privately, what confidential information he has from representing Hamdan that makes for a conflict in Nashiri’s case.
This story was first published on July 25, 2022. It was updated on July 26, 2022 to correct attribution for a comment questioning a conflict of interest claim. The comment was made by the judge, Col. Lanny Acosta Jr., not a defense attorney, Navy Capt. Brian Mizer.
