After years of secrecy, Pentagon seeks order to let public view hearing for accused Cole bomber


Miami Herald

Pentagon prosecutors have filed a sealed motion with the Guantánamo war court that apparently proposes allowing the general public for the first time to watch military proceedings against an accused al Qaida terrorist.

The filing for now is secret because intelligence experts from the Defense Department and other U.S. agencies have 15 business days to scrub it of classified information.

But the heading of the motion, "public access to this Military Commission via transmission of open court proceedings to remote locations for victim and media viewing," suggests it’s a push to allow members of the general public to view proceedings in the case of Abd al Rahim al Nashiri, a Saudi-born Guantánamo captive accused of masterminding al Qaida’s October 2000 suicide bombing of the USS Cole.

A hearing is scheduled for Wednesday at Guantánamo in the case. Nashiri is charged with murder in the deaths of 17 American sailors killed in the attack on the warship off Yemen. Nashiri could be sentenced to death.

The hearing will be Nashiri’s first appearance before the war court and will include a reading of the charges against him. It will be the first time he’s been seen in public since his 2002 capture in the Arabian Gulf region and disappearance into a network of secret CIA prisons. A congressional inquiry found that he was waterboarded and interrogated while agents loaded a gun and revved a drill near his head.

The Navy has arranged a closed-circuit television feed so family members of the victims can watch the proceedings at Norfolk Naval Station in Virginia. The Pentagon separately has set up a 100-seat viewing center 200 miles away at Fort Meade, Md., for reporters covering the proceedings. Only 20 reporters have signed up, however, leaving at least 80 seats vacant at Fort Meade that could be used by members of the public. How many additional spots might be available at Norfolk was uncertain.

One of Nashiri’s lawyers said Saturday that the defense team would study the request, but in principle they want the American people to see the proceedings.

"I think it would be useful for the public to see exactly how haphazard the system is," said Indianapolis death penalty defender Rick Kammen, part of the Saudi-captive’s four-lawyer Pentagon-paid defense team.

"I think the more the public sees this system the more they will understand that it really is the kind of secretive expedient justice that we’re afraid of."

Media organizations seeking greater transparency have proposed that C-SPAN or other organizations be allowed to broadcast the proceedings. But a Pentagon spokesman, Dave Oten, said Saturday that broadcast beyond closed-circuit viewing is forbidden under "federal court rules" that ban recording federal criminal proceedings. Were a channel to broadcast the trial, someone could record it, he said.

He did not make clear why the U.S. Supreme Court can issue an audio recording of its proceedings and the Pentagon can’t unilaterally choose to do the same from the war court, which the Bush administration created in response to the Sept. 11, 2001 terror attacks and President Barack Obama subsequently reformed in collaboration with Congress.

Until now, the Pentagon has rigidly restricted access to the Guantánamo trials to three types of observers:

_ Journalists under military escort traveling to Guantánamo after approval by the Secretary of Defense’s Public Affairs division. A 60-bed tent city was built near the Guantánamo court facility to accommodate them.

_ Legal observers under escort by the prison camps’ Distinguished Visitors unit. They have included delegates from the American Bar Association, American Civil Liberties Union, Heritage Foundation and Human Rights Watch.

_ Five citizens with companions invited by the prosecution’s victims rights advocate. They’ve been chosen by lottery from a pool of people who submitted their names as al Qaida victims, mostly family of suicide attack dead and wounded.

Wednesday’s hearing will be the first time the military proceedings will be viewed inside the United States, a development that will allow dozens more people to watch. The arrangements for the reporter viewing center came at the request of news organizations. The Pentagon had long planned to allow closed circuit viewing by survivors of victims.

The remote telecasts of the proceedings will be delayed by 40 seconds to allow a courtroom censor at Guantánamo to activate a white noise machine to shield sensitive information that might surface at the hearing.

A trial date for Nashiri has yet to be set. Army Col. James Pohl is presiding over the case.

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