Media organizations filed a motion Thursday opposing a Pentagon prosecution proposal to close portions of the hearings next week at Guantánamo in the USS Cole bombing death-penalty case.
At least 15 legal motions are on the agenda for the three-day hearing in the military commissions case of Saudi-born Abd al Rahim al Nashiri. He’s accused of orchestrating the October 2000 suicide bombing of the warship in the port of Aden, Yemen, that killed 17 U.S. sailors. Judge James Pohl, an Army colonel, is to decide issues that range from defense funding to whether to disqualify himself and appoint another military judge to the case.
Also on the agenda are two sealed motions by Nashiri’s defense lawyers that seek access to information of a nature that is being withheld from the public. Nashiri’s prosecutor has filed a request to discuss those two motions “in camera,” either in the judge’s chambers or at least out of public view, and the news organizations argue against automatic closure. The Miami Herald and McClatchy company are among the 14 media groups.
Nashiri is the captive “to face capital punishment if convicted in this Military Commission, and there is thus significant public interest in the Commission proceedings in this case,” press attorney David Schulz wrote in the 24-page motion, which was posted on the Pentagon website without redactions.
“The court record includes allegations that Mr. al Nashiri was subjected to torture in U.S. custody, adding to the public’s need to know.” It is not known precisely what is at issue in the legal motions, Schulz notes in his objection, because “the motions are entirely redacted in the public record” on the Pentagon’s military commissions website whose motto is “Fairness * Transparency * Justice.” It is seeking evidence from an unidentified witness or institution on facts relating to the "arrest, detention and rendition” of Nashiri.
Defense lawyers did not object to the prosecution effort to close the hearing. Nashiri’s civilian lawyer, Richard Kammen, says in a separate filing unsealed Friday that it had no choice “based upon the government’s illegal over-classification of information relevant and necessary to the defense of this case.”
At the war court, the Pentagon takes the position that even if information is already in the public domain it cannot be discussed in open court if it is also classified elsewhere. The media lawyer argues there should be a higher standard for closure, to include a factual finding that “the disclosure of specific information would create a substantial probability of harm to a compelling governmental interest.”
Nashiri, who allegedly served as al Qaida’s chief of Arabian Sea operations, has been held at Guantánamo since 2006, four years after his capture in the United Arab Emirates. In between he was held in the secret CIA prison network, called black sites, where declassified abuse investigations found agents interrogated him at gunpoint, with a revving power drill to his head, while hooded — techniques his defense team considers torture that makes certain evidence inadmissible at trial.
A 2010 U.N. Human Rights Council report said that Nashiri was held in Poland and probably also in Thailand.
Admissions made under torture or coercion are forbidden at the Guantánamo trials. But treatment may be brought before a panel deciding whether to hand down a death penalty after a conviction. In addition, defense lawyers are trying to surface secret information about what happened to CIA captives to argue that some evidence beyond confessions may be tainted by torture.
The other organizations that joined the motion were ABC, Associated Press, Bloomberg News, CBS Broadcasting, Fox News Network, National Public Radio, The New York Times, The New Yorker, Reuters, Tribune Company, Wall Street Journal, and Washington Post.
Four reporters are traveling to the U.S. Navy base in southeast Cuba for the proceedings, and more are expected at a closed-circuit viewing site at Fort Meade, Md.
Human rights lawyers with the Open Society Justice Initiative allege in a case filed against Poland at the European Court of Human Rights that Nashiri spent six months at a Polish military intelligence base in Stare Kiejkuty where “U.S. interrogators subjected Mr. al Nashiri to mock executions with a power drill as he stood naked and hooded.”
There, U.S. agents also “racked a semi-automatic handgun close to his head as he sat shackled before them,” had him lifted “off the floor by his arms while they were bound behind his back causing their near dislocation from his shoulders,” and also “threatened to bring in his mother and sexually abuse her in front of him.”
The Open Society case at the European Court alleges that Nashiri was taken on an around-the-world odyssey while in CIA custody before his transfer to the U.S. military in 2006 — with stops at secret CIA prisons, called “dark sites” in Afghanistan, Guantánamo, Morocco and Romania in addition to Thailand and Poland.