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FORT MEADE, Md. A military judge at Guantanamo Bay refused Monday to suspend a pretrial hearing for the prisoner accused of orchestrating the attack on the destroyer 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 said he will consider ordering some courtroom microphones removed to eliminate the possibility that they could inadvertently pick up private conversations. He also directed prosecutors to arrange for defense attorneys to meet with technology experts at the Guantanamo detention facility to investigate whether client-attorney meetings there could be improperly monitored.
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 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 Jan. 31 to disconnect the equipment.
Al-Nashiri's defense team accepted prosecutor Anthony W. Mattivi's assurance that no listening capability exists in holding cells near the courtroom. But defense lawyers still worried about a third party secretly monitoring privileged conversations in a room at the Guantanamo detention facility where lawyers meet with their clients.
Reyes said he especially wants to know if the CIA can eavesdrop on privileged 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 water-boarded, 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 deemed torture.
Pohl also ordered a mental health examination to determine whether al-Nashiri is competent to participate in his defense.
Prosecutors sought the exam, called a court-martial rule 706 board, or "sanity board." The impetus was two statements al-Nashiri made during an October hearing that Guantanamo guards "create new rules by which they attack us" and "my nerves are also bad."
Al-Nashiri's lawyers asked Pohl on Monday to order that the examination be done with sensitivity to their client's history of being treated harshly to avoid "re-traumatizing" him. Pohl will hear testimony Tuesday or Wednesday from a defense expert witness before crafting his order.