Guantánamo judge’s ruling avoids issue of secret testimony

GUANTANAMO BAY NAVY BASE, Cuba -- A First Amendment attorney, in a first-ever appearance at the war court, urged a military judge Wednesday not to close testimony by a captive on how the CIA interrogated him. The military judge then mooted the issue, for now, by ordering the prison camps to unshackle the captive for meetings with his lawyers.

The averted showdown came at a pre-trial hearing in the case of Abd al Rahim al Nashiri, 47, facing a capital murder trial as the alleged architect of al Qaida’s 2000 suicide bombing of the USS Cole off Yemen. Seventeen sailors died and dozens more were wounded.

It had threatened to be a crucial test of transparency in the military commissions as they gear up to bring five men accused of orchestrating the Sept. 11 attacks before the military tribunal.

At issue had been a defense request to order the prison camps commander to have Nashiri unshackled at the ankles during meetings with his attorneys, just as he is at the war court defense table. Wednesday he strolled in surrounded by guards and sat at the defense table in a white prison-camp uniform issued to cooperative captives, looking relaxed in the defendant’s chair as his lawyers sought to argue he has been so traumatized by his CIA interrogations that he can’t help prepare a defense in this death-penalty case.

To make their argument, his attorneys filed notice that they would call him to testify about the things that agents did to him before his 2006 transfer to Guantánamo — waterboarded him, revved a drill near his hooded head, and racked a handgun, according to a CIA abuse investigation — and include classified information that under the war court rules would mandate closure.

Pentagon prosecutors also asked the judge for a closed hearing on whether Nashiri would testify in secret.

To preempt it, a coalition of 10 news organizations, including The Miami Herald and its corporate parent, The McClatchy Company, hired First Amendment lawyer David A. Schulz to oppose closing the court. Prosecutors then invited him to come to court this week and, if the judge agreed, make an argument. The judge, Army Col. James Pohl, did — a war court first.

Schulz argued the judge had the authority to keep the court open at least for testimony about Nashiri’s waterboarding and other known interrogation techniques.

It would “make a mockery out of the proceedings” to close the court for Nashiri’s testimony, Schulz argued, about “information that the whole world knows or can find in two seconds on the Internet.”

An intelligence agent in the court could use white noise to obscure testimony about information that needs protection. Closure, Schulz argued, should be driven by Pohl’s making a public, factual finding that disclosure of information would have “a substantial probability of threat to national security.”

Rather than rule on the request, the judge questioned defense lawyer Rick Kammen on a solution the prosecution proposed early in the day at a chambers hearing, out of court.

Nashiri would not be shackled at the ankles and would meet with his attorneys through a mesh divider.

That description matches the site where attorneys meet captives at Camp Echo — little huts with a cell on one side of the mesh and a table on the other side. At the table, a captive can be shackled by the ankles to the floor and his attorney can sit opposite him. Or, the captive can stay in the cell unshackled, and talk to his lawyer through the metal mesh.

Defense lawyers asked to be locked in a meeting room with Nashiri and have guards wait outside. They said they did not fear their client.

“A $5 lock — or a $100 lock, since it’s Guantánamo — solves the issue,” Kammen said. The judge rejected the defense motion for meetings that include physical contact.

For his part, Schulz considered the appearance a victory. It was the first time the war court gave a media lawyer the standing to address the military court, at the invitation of the case prosecutor. Although the judge didn’t rule on Schulz’s argument that such testimony should be opened,

Pohl questioned the New York attorney about what standard should be used for closure.

“It was very significant that Judge Pohl allowed the media’s lawyer to appear at the hearing to present our First Amendment arguments directly to him,” said McClatchy Assistant General Counsel Steve Burns, who championed the effort. “The court was clearly interested in the issues we raised and will undoubtedly keep these basic principles in mind as this and other cases progress.”

Schulz noted that the issue was likely to come up again, if not in the USS Cole bombing case then in the joint trial of five Guantánamo captives facing a death penalty trial for the Sept. 11 attacks. Pohl is hearing that case, too.

Much of the day was spent on legal arguments on whether the charges against Nashiri, and essentially the war court itself were constitutional. The chief prosecutor, Army Brig. Gen. Mark Martins, defended the court motion by motion for the government.

But the treatment of captives at the prison camps continued to come up, too.

Kammen disclosed Wednesday that the prison camps had adopted a new policy of requiring that all captives get brought to court, even if they waive their appearances — and would use “forced cell extractions,” tackling and shackling any captive who resists.

Nashiri was considering skipping Thursday’s session, more dry legal arguments, said Kammen, because the judge had told him at his arraignment that he wasn’t required to attend his trial but urged his attendance.

The judge said he wouldn’t involve himself in the operation of the prison camps. But, if the prison commander “wants to waste his time” by moving Nashiri from his cell to the court complex on a day he waived attendance, Pohl said he’d likely inquire about it.