By Jane Sutton
GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - The commander of the Guantanamo detention camp testified on Tuesday that it was necessary for Pentagon contractors to review the confidential mail prisoners receive from their U.S. military lawyers in order to ensure it did not contain contraband.
Defense lawyers in the trial of alleged al Qaeda bomber Abd al Rahim al Nashiri said they had done nothing to earn that mistrust. They contend the order violates confidentiality rules and forces them to illegally disclose trial strategy, violating the defendants' right to a fair trial.
It is also an ethical violation that potentially could put their own law licenses in jeopardy, they said.
"We cannot follow this order," Nashiri's military lawyer, Navy Lieutenant Commander Stephen Reyes, said in the high-security courtroom on Tuesday.
The dispute between military lawyers and jailers played out as the United States prepares to expand the number of Guantanamo prisoners facing war crimes charges that could eventually lead to their execution.
The judge took the unusual step of ordering the detention camp commander, Rear Admiral David Woods, to testify in court about the mail-screening procedure he imposed last month at the detention camp on the Guantanamo Bay U.S. naval base in eastern Cuba.
The judge, Army Colonel James Pohl, cannot compel the admiral to change the policy. But he could halt the prosecution of Nashiri, a Saudi captive accused of murdering 17 U.S. sailors, if he believes the policy violates his right to a fair trial or puts defense lawyers in an ethical bind.
Woods said it was necessary for review teams to conduct a quick scan of incoming legal mail to ensure it did not contain "physical or informational contraband" that could jeopardize camp security.
"Doesn't your order invite them to start reading the mail if they are to do their job?" Reyes asked.
"I don't believe it does," Woods replied.
He said the reviews were conducted by civilian contractors, who included lawyers, translators and former intelligence officers and that their Pentagon contracts forbade them from disclosing confidential information. He said he did not know who their boss was but that they could be fired if they violated the nondisclosure agreement.
"Is a civilian contractor subject to the orders of a military judge?" the judge asked.
He was to hear more testimony on Wednesday before ruling on the matter.
DEFENSE CHIEF ORDERS STOP TO CONFIDENTIAL MAIL
Defense lawyers say the rule is so narrow that they would be prohibited from sending their clients a copy of the law pertaining to their cases, or the resumes of expert witnesses called to testify on their behalf.
The chief defense counsel for the Guantanamo tribunals, Marine Colonel Jeffrey Colwell, has ordered defense lawyers to stop sending confidential mail to their clients while the order is in effect.
Another military lawyer representing one of five prisoners accused of plotting the September 11, 2001, attacks filed suit in a federal appeals court accusing the prison of violating his client's right to a fair trial.
Death penalty charges against those five prisoners are expected to be approved for trial within weeks, and new charges are also expected soon for other Guantanamo prisoners.
Currently, Nashiri is the only one facing charges in the tribunal system that operates outside the rules applied to regular civilian and military courts.
He is accused of orchestrating the October 2000 attack that killed 17 U.S. sailors and injured dozens more aboard the USS Cole. Suicide bombers rammed a boat full of explosives into the side of the American warship while it refueled in the Yemeni port of Aden, blowing a gaping hole in its side.
Nashiri is charged with war crimes including murder, attempted murder, conspiring with al Qaeda and attacking civilians and could be executed if he is convicted.
He is also accused of launching a bomb attack on a French oil tanker, the MV Limburg, off the coast of Yemen in October 2002, an attack that killed a Bulgarian crewman.
A Pentagon spokesman explained on Tuesday how the United States had jurisdiction to try Nashiri on that charge.
Nashiri is an unprivileged enemy belligerent, meaning he is part of a group that operates outside the structure of a regular army and attacks civilians, Army Lieutenant Colonel Todd Breasseale said.
The U.S. law underpinning the Guantanamo tribunals and the international laws of war give the United States jurisdiction to try him no matter where an attack occurred, because its interests are affected, said Breasseale.
"It's an oil tanker and it's affecting our economy," he said.
(Editing by Kevin Gray and Peter Cooney)