Case Coverage: Military Commissions

This Week at the Military Commissions, 3/14 Session: More Testimony on the Cole Bombing

By Nora Ellingsen
Thursday, March 16, 2017, 4:53 PM

It’s Tuesday morning, and we’re back at Guantanamo for more pre-trial hearings in the al-Nashiri case. The defendant, the alleged mastermind behind the October 2000 bombing of the USS Cole, is not present at the Commission today. We are informed by the defense that he waived his right to be present earlier. With no translations, the day moves quickly.

As usual, Air Force Colonel Vance Spath is presiding as military judge, and the commission begins where it left off yesterday—presenting witnesses who collected and were custodians of evidence from the USS Cole bombings. Over the course of the day, the prosecution presents five witnesses: all current or former FBI Special Agents who deployed to the USS Cole scene as members of the Evidence Response Team.

First up is former FBI Special Agent Jane Rhodes-Wolfe. She returns to the stand after beginning her testimony the previous day. Lead prosecutor Mark Miller asks Rhodes-Wolfe to identify and authenticate evidence she seized from the USS Cole, most of which appears to be debris.  Rhodes-Wolfe also testifies about the chain of custody, stating that after she seized each piece of evidence, she provided them to Special Agent Dayna Better for storage.

Next up is Rosa Eliades for the defense, who begins by asking Rhodes-Wolfe if she took notes at the crime scene (Rhodes-Wolfe remembers having a clipboard but doesn’t know what happened to it) or wrote an official report (she wrote a 302, one type of FBI report.) Rhodes-Wolfe confirms that she learned the importance of documentation, both photographic and handwritten, while at the FBI Academy in Quantico, Virginia—people’s memories fade over time, after all. She can’t testify to the specific FBI scene preservation in place at the time, but explains that general policies and procedures combined with Attorney General guidelines create the general standards for FBI activity. The former FBI agent explains that she received additional training when she became a member of the New York Evidence Response Team (ERT) in 1999, three years after she joined the FBI. The defense asks the witness several times if she was familiar with the Guide for Explosion and Bombing Scene Investigation that was in existence in 2000, but Rhodes-Wolfe doesn’t recall the specific document and the prosecution objects.

The defense moves on to alternate line of questioning, asking the former Special Agent if her work in New York on primarily bank fraud matters included “any type of collection of evidence similar to the magnitude on the Cole.” It did not, but Rhodes-Wolfe did point out that she had responded to both the TWA 800 and Egypt Air 990 investigations, as well as other mass casualty events.

Eliades asks Rhodes-Wolfe about how she volunteered for the USS Cole assignment, when she traveled, and how many FBI personnel travelled with her. Rhodes-Wolfe, who worked as the team leader in charge of collecting evidence above the deck, walks the defense through the process of collecting evidence onboard: her team received input from the lab employees as to what was important and needed to be collected. They then developed a grid system to track their process in searching the ship and documenting where evidence came from. They system, Rhodes-Wolfe explained, was not sophisticated: “We were really having to work on the fly to help make the most of our time on the ground.”

But her team members weren’t the only individuals on the ship, Rhodes-Wolfe testified. Other personnel would bring pieces of evidence to her team’s attention, including members of the Hostage Rescue Team as well as the USS Cole sailors. The two go into tedious detail about the collection and logging of evidence, with Eliades sometimes caveating her questions: “I know this is almost an unfair question, but I will ask it. How many of the items would you say were items that the sailors brought you?” There’s a lot of talk of specific FBI systems, how Special Agents file evidence logs, and what tools the team brought with them.

When Eliades asks Rhodes-Wolfe what other scenes she processed during her career, Rhodes-Wolfe testifies that she worked in New York at the site of the World Trade Center for six months: "I thought that the USS Cole was the most horrifying thing that I would ever see in my life, and regrettably I was wrong.”

Rhodes-Wolfe was at the USS Cole scene for approximately ten days, but testified that she and her team knew their time was limited. Water was coming onboard the ship as they tried to keep it afloat, and the plan was to transport it back to the United States. There were also ongoing security threats most night at their hotel, and her team was prepared to evacuate at any time. Finally, they felt pressure from the State Department—the ambassador was concerned the Yemenis would affect the integrity of their investigation and pressured the FBI to get the job done as quickly as possible. She had concerns about the security of their communications, and executives had meetings in the bathroom with the shower running.

Eliades is done, and Miller returns for redirect examination. He asks Rhodes-Wolfe to clarify why she didn’t do some of the regular things she otherwise would have done at the scene. Rhodes-Wolfe describes the chaotic scene on the USS Cole: they had very few personnel, working in the stifling heat, without a computer in the world prior to laptops. The State Department wouldn’t let the FBI bring an entire crew, so they made do with the personnel they had. With that, Rhodes-Wolfe is done for the day, although she’ll be back to testify later this week, and the court takes a 15 minutes recess.

After the short recess, the prosecution calls their next witness, FBI Special Agent William Davitch. Miller asks Davitch several quick questions about his background: Davitch has been with the FBI for over 29 years, joining right out of college as lab technician in the Explosives Unit. Five years later he became a Special Agent. While assigned to the FBI’s New York office, Davitch served as the special agent bomb technician coordinator. When the USS Cole was attacked, Davitch was in Tashkent, Uzbekistan teaching a course on bombing crimes scenes to the Uzbeks. He and most of the team were diverted from the training and travelled to Yemen. Davitch testifies about his arrival on country and his duties on the ship, which mainly included collecting evidence from the exterior decks of the ship, and the higher decks down to the main deck.

Davitch testifies that he has worked on crimes scenes that include the first World Trade Center, the East African embassy bombings, and the Oklahoma City bombing. He describes the procedure he used on the USS Cole: “We would either, like I said, sweep up a small area, and then, you know, mark that evidence bag with our name, initials, date, and bag those items together. And those items then were brought back to a central location where they were logged. And then those items would be taken from the ship to the shore at the end of the day and held there for storage.” At times, Davitch testified, there was a lag in the chain of custody because they were transferring evidence from the ship to a storage location on shore. On October 22nd, Davitch helped transport some of the evidence back to the United States.

Miller’s direct examination of Davitch lasts just over an hour. Davitch spends the majority of that time identifying and authenticating the evidence he retrieved from the USS Cole. When the prosecution is finished, shortly after noon, the commission takes a recess for lunch.

After lunch, the commission returns for Richard Kammen’s cross-examination of Davitch. Kammen begins by asking Davitch about his work on the USS Iowa investigation following the 1989 explosion which killing 47 people. However, Davitch corrects the defense’s misinformation that he was present at the actual scene, instead of reviewing evidence at the lab, so Kammen moves on. Next the defense attorney goes back and forth with Davitch about the “prepacked” equipment the Evidence Response Team brought to the scene. After a few confusing moments, Davitch confirms that yes, the Evidence Response Team does have gear, packed ahead of time, which they bring with them to a scene.

Kammen moves on to the actual scene at the USS Cole, quickly jumping from topic to topic. He asks Davitch what he did to secure the scene: “Where did you put the yellow tape to keep people out of certain areas?” He did not put up any yellow tape, Davitch replies. Next Kammen asks about the presence of scales in evidence photographs. Davitch says that someone else made the decision whether or not to put a scale next to the evidence in the photograph. Now Kammen wants to know who specifically on ERT was responsible for maintaining the evidence logs. Davitch can’t remember.

Next, Kammen focuses on one particular piece of evidence. According to the evidence bag, there’s a 48-hour gap from when Davitch picked up the evidence from the deck and when it arrived at the storage container. Davitch testifies that the evidence was either maintained on the ship or in that storage location during the gap. Kammen presses Davitch and asks if he teaches his students to keep records. “That’s the record,” he replies. Kammen then brings up another piece of evidence. This time he’s concerned that someone else signed Davitch’s name to the evidence chain of custody form. Davitch says that someone else wrote his name to indicate that he was the one who collected the evidence. Davitch explains that the forms aren’t usually filled out at the time of collection, and he could have signed it much later, although he doesn’t remember: “It normally is filled out in some close period of time, but there are times where it’s not immediate.” Finally, Kammen is done.

Judge Spath now has a few questions for Davitch. He pulls up an evidence bag and asks Davitch who signed the bag along with Davitch. The witness responds that he believes that was an NCIS officer. Both the defense and prosecution ask Davitch several more questions about the evidence log and then he is done for the day.

Miller calls the prosecution’s next witness. No surprise: it’s another former FBI Special Agent, Robert Holley. Now retired, Holley was with the FBI for 20 years. Prompted by Miller, Holley gives a brief overview of his time with the FBI: He worked almost exclusively counterterrorism matters bouncing between the Midwest and Washington, D.C. Like Davitch, he also served as a bomb tech, prior to moving into management. He was also with Davitch in Tashkent at the time of the USS Cole bombing and also travelled to Yemen to assist at the scene. Holley was assigned to a sifting table down on one of the decks, and brought up any evidence he believed to be of material value. Although most of his work was below deck, Holley also testifies that he searched above deck where he found skull fragments. Similar to the first several agents who testified, Miller walks Holley through several pieces of evidence he recovered while on the USS Cole.

The commission takes a quick recess and comes back for the defense’s cross-examination of Holley. Kammen is again asking the questions and tells Holley that he too is from Indiana. Kammen begins by questions Holley’s ability, given that he had never been on a destroyer, to differentiate debris that was part of the destroyer with debris that should be logged into evidence. Next Kammen questions Holley on the procedures at the sifting table, and shows Holley a chain of custody form for evidence he retrieved, without his signature on it.

Next, the prosecution calls FBI Special Agent Jeffrey Miller, not related to lead prosecutor Mark Miller, who begins his questioning. An FBI Special Agent for almost 20 years, Jeffrey Miller was working at the Washington Field Office at the time of the USS Cole bombing. As an ERT member, the witness deployed immediately and was among the first group of FBI agents to arrive on scene: “It was an incredible sight to behold. Sailors everywhere, and the smell of death in the air, as well as the sailors attempting to keep their ship afloat, working.” The witness was assigned to search the galley—his job entailed collecting all fragments in two buckets and bring them to the sifting stations. For the next four days, Jeffrey Miller continued to search the galley, and participated in several of the land searches as well. The prosecution has no further questions and Navy Lieutenant Commander Jennifer Pollio begins cross-examination for the defense. She clarifies a bit of Miller’s travel timeline, and asks him about the gear he wore while conducting the searches. Miller also confirms that his team had prepackaged kits ready to go in the case of an emergency. Pollio asks if the importance of documentation of evidence has been “beat into” him. It has, Miller testifies. Miller testifies further to his responsibilities, and how the shifting table operated and how he brought buckets from the galley.

The last witness of the day is Special Agent Tracy Kneisler. Like the previous witness, Kneisler was an ERT member in the Washington Field Office at the time of the USS Cole bombing. Kneisler testifies that the first thing her team did upon arriving at the scene was to search through the debris on the beach area that had washed up from the Cole. The next day, her team searched the USS Cole itself. The prosecution then asks Kneisler about the different FBI personnel onboard and she explains that the investigators, although also special agents, had different responsibilities—they were primarily focused on conducting interviews. Her team first did a general walkthrough of the ship and formulated a plan of how they would do the search. She specifically was assigned to the outside portions of the ship and testified that the search was difficult: It was over 100 degrees and the ship smelled of rotting food and human remains. To complicate matters further, the survivors, the sailors, were still present at the scene. Like the rest of the witnesses, Kneisler details her produces for collecting evidence. When Miller is finished, Judge Spath announces that cross-examination will be done the next day. Tomorrow, the commission will have ten more bags of evidence to admit.