In first, judge will let media lawyer argue in Guantanamo courtroom

The Miami HeraldApril 10, 2012 

GUANTANAMO BAY NAVY BASE, Cuba — The chief war court judge Tuesday agreed to let a First Amendment attorney argue against closure of the first ever military commissions testimony by a captive about CIA interrogations that the government contends are secret.

New York lawyer David A. Schulz emerged from a meeting with Army Col. James Pohl, the judge, saying he would be able to follow defense lawyers Wednesday morning with an objection by members of major U.S. news organizations to plans to close portions of a pre-trial hearing in the capital case of alleged al Qaida bomber Abd al Rahim al Nashiri. Prosecutors allege that Nashiri orchestrated the October 2000 suicide bombing of the USS Cole that killed 17 American sailors. If convicted, he could face military execution.

"Judge Pohl has now agreed to entertain the objections by the press to closing a hearing where the defendant may testify," Schulz said. "This will be the first time that a non-party has been allowed to make an access motion to a military commission at Guantanamo. This is an encouraging sign."

This week, Nashiri’s defenders intend to call him to testify in a closed military commissions session about his treatment at secret overseas CIA prisons in 2002 and 2003 when, according to declassified U.S. documents, he was waterboarded, threatened with a handgun and a power drill to get him to confess to his role as an alleged al Qaida terror planner.

At issue is how much, if any, of the testimony -- and discussion in advance about the testimony -- should be held in private, with only the judge and lawyers present.

Schulz filed a protest on behalf of a consortium of news organizations, ranging from The Miami Herald and its corporate parent, The McClatchy Company, to Fox News to The New York Times and National Public Radio over war court secrecy last week. He argued it is not only in the public’s interest to know what the CIA did, but also that some of the so-called secret interrogation techniques have already been disclosed in properly declassified CIA documents.

It was not known if he would be allowed to address the court when he joined journalists departing from Andrews Air Force Base outside Washington D.C. on Tuesday morning. Tuesday evening, he said the judge granted him access to the maximum-security bunker-like Expeditionary Legal Compound, where spectators hear the proceedings on a 40-second delay in case somebody spills state secrets.

The judge was expected to rule by Wednesday afternoon how much of this week's hearings will be seen in public. Schulz also said that the hearings, once expect to end by Friday morning could extend through the weekend.

“This is arguably the first major test of this iteration of the commissions,” said Eugene Fidell, who teaches military justice at Yale Law School. “Somebody has got to take a hard independent look at what’s classified and why.”

“If the purpose of this is to avoid embarrassment to the government, that is not a valid reason to conceal anything,” he said. “If the purpose is to cover up criminal activist, that is not a valid reason to conceal it, either.”

Pentagon officials say the closure of the hearing is driven not by individual desire but by rules at the Obama-era war court that protect national security secrets that are properly classified.

The Pentagon’s chief war court prosecutor, Brig. Gen. Mark Martins, has said his attorneys are forbidden by law from building their cases around torture or other coerced evidence. Defense lawyers, however, argue that the war court judge, Army Col. James Pohl, needs to hear from Nashiri himself about his CIA treatment in order to decide whether to order the Guantánamo prison to unshackle Nashiri at the ankles during trial preparation with his lawyers.

Only five reporters were bound for Guantánamo for this week’s hearing, and 10 more had signed up to watch the proceedings from a remote closed-circuit viewing site in Fort Meade, Md.

But the media challenge is likely to test how much the public might see of the coming conspiracy trial of five alleged conspirators in the 79/11 terror attacks — chief among them alleged mastermind Khalid Sheik Mohammed. They, too, could face military execution if convicted of war crimes.

“This is going to be a recurring issue,” said Fidell, noting that the chief prosecutor, Martins, has been boasting of new transparency in the war court that Obama reformed — most recently in an April 3 talk at the Harvard Law School.

Unclear was whether Schulz would be allowed to argue against closure at the war court itself. He wrote the judge last week, protesting plans to close it and proposing the court use white noise to muffle presumably classified information followed by release of a properly classified transcript of Nashiri’s testimony.

The USS Cole case prosecutor, Anthony Mattivi, invited Schulz to the proceedings but said the military judge would decide whether Schulz could argue his protest — either in a chambers meeting between lawyers, called an 802, or in the war court itself.

Independent lawyers, such as observers with the American Bar Association and National Institute of Military Justice, have been invited to watch the proceedings as guests of the Pentagon but not take part.

Schulz is the first known outside lawyer to come to Guantánamo to argue for greater openness. Other media organizations joining in the action are The Washington Post, Wall Street Journal, Reuters, Tribune Company and the New Yorker magazine.

“We’re going down there because we believe that the Military Commissions Act demands open proceedings and grants the press a right to be heard,” Schulz said.

“I expect to be able to address the judge, in a public setting, to make our position known that before a proceeding can properly be closed, the judge has to explain on the record why it’s a threat to national security to hold an open hearing, or how someone’s physical safety would be jeopardized. The public has the same right to know what happens in a military trial as in any civilian prosecution.”

Also unclear was whether Nashiri would testify at all. Not all briefs to be discussed this week were released by the Pentagon on Monday night. But one source aware of the motions said the government had opposed letting the Saudi testify.

The government has argued in the past that the prison camps chief, a Navy admiral, should be allowed to secure his 171 captives as he sees fit.

This week’s hearings are devoted to the portion of the pre-trial phase when the Pentagon-paid defense team tries to get the case dismissed as illegitimate.

Up to 23 motions are expected to be heard this week. In one, Nashiri’s defenders argue the war court itself is unlawful because Congress limited military commission trials to foreigners -- not American citizens.

“Like the criminal laws of Jim Crowe that punished defendants differently, not based upon the seriousness of their acts, but upon the arbitrary class of persons in to which they were born, the limitation of military commission jurisdiction to aliens alone targets a suspect class for no added benefit to national security,” the defense team writes in one effort to halt the death penalty prosecution.

Military Commissions judges have rejected similar arguments in other cases in earlier versions of the war court.

Lawyers for Osama bin Laden’s driver, convicted in 2008 and already free in Yemen after serving a short sentence, have already lost some of these fundamental jurisdiction issues at a military court of appeals.

They’ll next be heard on May 3 at the U.S. Court of Appeals for the District of Columbia Circuit, the first civilian court to sit hear the appeal of the driver, Salim Hamdan.

Nashiri’s lawyers also argue that, unlike Hamdan, Nashiri was “not captured on a foreign battlefield. He was arrested by a foreign sovereign and transferred to the custody of a civilian U.S. agency, where he was held for four years.”

Nashiri was arrested in the United Arab Emirates and turned over to the CIA. While in CIA custody, federal prosecutors got an indictment against him in the Southern District of New York, they write.

Attorney General Eric Holder decided in 2009 that Nashiri should be tried at Guantánamo, not in a federal court.

To read more, visit www.miamiherald.com.

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