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FORT MEADE, Md. A judge at Guantanamo Bay refused Monday to suspend a pretrial hearing for the prisoner accused of orchestrating the attack on the Cole, ruling that defense lawyers had offered no evidence supporting their suspicion that the CIA can eavesdrop on their private conversations with their client.
Army Col. James Pohl said that unless the defense can offer evidence of eavesdropping, the hearing for Abd al-Rahim al-Nashiri would continue.
"I can't stop a trial simply because something might happen," Pohl told defense attorney Navy Lt. Cmdr. Stephen Reyes during a heated exchange at the start of the scheduled four-day hearing.
Pohl granted al-Nashiri's lawyers a three-hour recess to consider whether they can ethically continue representing him if they suspect that their privileged conversations are being monitored.
The hearing was held at the U.S. naval base in Cuba. The Associated Press watched a video feed of the hearing at Fort Meade.
Al-Nashiri, a Saudi national, is charged with orchestrating the 2000 attack on the Cole, which killed 17 sailors and wounded 37. He has been imprisoned at Guantanamo since 2006, after being held by the CIA in a series of secret prisons. He is considered to be one of the most senior leaders in al-Qaida.
The eavesdropping issue sprang from an episode last week in another Guantanamo case in which an undisclosed government agency unilaterally silenced courtroom loudspeakers to prevent spectators from hearing classified information. Pohl, who was surprised by the action, ordered the agency on Thursday to disconnect the equipment.
Reyes said the defense wants to know whether any third party can secretly monitor privileged conversations at the courtroom defense table, in a nearby holding cell or elsewhere on the base.
Prosecutor Anthony W. Mattivi assured the judge that no such capability exists. Reyes wasn't satisfied.
"Now that we know there's a man behind the curtain, we can't say, ‘Ignore the man behind the curtain,'" Reyes said.
Reyes said he especially wants to know if the CIA can eavesdrop on those conversations.
"If it is the CIA that is conducting the listening, this is the same organization that detained and tortured Mr. al-Nashiri," Reyes said.
A CIA inspector general's report said al-Nashiri was waterboarded and threatened with a gun and a power drill because interrogators believed he was withholding information about possible attacks against the United States. Such practices were allowed under rules approved by the George W. Bush administration, but many of them have since been repudiated as torture.