GUANTANAMO BAY NAVY BASE, Cuba -- A military judge Wednesday held the first secret hearing at the Obama-era war court, a 90-minute discussion of a defense bid in a death penalty case to learn more about the accused’s treatment in clandestine CIA custody.
Even the accused, Saudi-born Abd al Rahim al Nashiri, 47, was locked out of the closed session. It began at 9:03 a.m. and ended at 10:30 a.m.
Nashiri is the alleged architect of the October 2000 attack on the USS Cole that killed 17 U.S. sailors, and his lawyers had argued that he should be present. The government objected, and the judge agreed.
“He does not have a clearance,” said Army Brig. Gen. Mark Martins, the chief war crimes prosecutor, telling reporters on the eve of the hearing that classified information would be discussed.
There was no open session at all Wednesday. Col. James Pohl, the judge, recessed after the secret hearing until Thursday morning.
At issue were two defense motions seeking discovery in the case. The Pentagon kept the motions under seal at the war court, but notations on the docket made clear that there was a defense bid to get the government to turn over information about Nashiri’s capture and treatment during his four years in the CIA’s secret overseas prison network before his transfer to military custody in Guantánamo in 2006.
Martins would not go into detail on Wednesday morning after the session but said defense lawyers agreed to postpone court arguments on the two sealed motions until a future Nashiri hearing.
A 2010 U.N. Human Rights Council report said that Nashiri was held in Poland and probably also in Thailand. While in the secret CIA prison network, according to declassified abuse investigations, U.S. agents interrogated him at gunpoint, with a revving power drill to his head, and while hooded — techniques his defense team considers torture that makes certain evidence inadmissible at trial.
Nashiri lawyer Rick Kammen said the war court rules coupled with what he termed “the government’s illegal over-classification” of case information left the defense with no choice but to argue its motion in secret. Pentagon officials argue that reforms introduced at the war court during the administration of President Barack Obama have made the process more favorable to the accused and more transparent.
Kammen said Tuesday evening before the secret session, “When you get past some of the superficial stuff nothing has really changed since 2006.” Defense lawyers are demanding more resources and dispute the government’s rules of classification surrounding the former CIA captives. “And in that sense, the system is not any more open, transparent or fair.”
Countered Martins, the chief prosecutor: “This is an adversarial process. It is as open and transparent as we can make it.”
Fourteen media organizations had filed a motion opposing plans to close the hearings, but neither the judge nor lawyers made any mention of it in a discussion Tuesday afternoon mapping out plans to start in secret Wednesday. To lawfully close, First Amendment attorney David Schulz argued in the motion, the judge would have to articulate an explanation for the public record on what compelled closure — such as why disclosure would have a substantial probability of risking American national security or personal safety.