GUANTANAMO BAY NAVY BASE, Cuba -- USS Cole case lawyers met in closed session with the war court judge Thursday in a continuing prosecution bid to reverse a judicial order to disclose details of the CIA’s “black sites” to defense lawyers in the death-penalty case.
No additional details came out of the nearly three-hour closed hearing that excluded both the public and accused al-Qaida terrorist, Abd al Rahim al Nashiri.
But defense lawyers said in court a day earlier that they would go into secret session in the case prosecutor’s continuing bid to get the judge, Army Col. James L. Pohl, to tone down, if not withdraw, his April 14 order to the U.S. government to let defense attorneys see, in classified fashion, a chronological accounting of what the spy agency did with Nashiri from his capture in 2002 to his arrival at Guantánamo.
The secret session came a day after the chief prosecutor, Army Brig. Gen. Mark Martins, offered a new interpretation of war court secrecy to mean that defense lawyers could for the first time soon show Nashiri some state secrets regarding his waterboarding and other CIA treatment during his first four years of U.S. custody.
An “appropriate authority,” Martins said, without elaboration, had decided to relabel secret evidence about Nashiri’s interrogation as “display only, Abd al Rahim al Nashiri” — so defense lawyers could show it to the accused terrorist to discuss how the prosecution characterizes his interrogations and detention.
Prosecutors have threatened to appeal the order and argue that Pohl doesn’t have the authority to share explicit details about the CIA interrogation program with defense attorneys, even in top-secret fashion. Meantime, the general and the judge were scheduled to meet Friday “ex-parte” — defense attorneys excluded — so prosecutors could show the judge which evidence they are willing to give the defense, to see if it would comply with his order.
Nashiri is accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide bombing of the U.S. Navy warship at the port of Aden, Yemen. Seventeen American sailors died and dozens more were injured after two men motored an explosives-packed skiff alongside the Cole and blew themselves up.
One issue, based on court argument Wednesday, is whether the prosecution can still create substitutions and summaries of actual evidence.
In his order, Pohl told the government to give Nashiri’s lawyers the names of those who interrogated, guarded and provided his medical treatment during the Saudi’s four-year odyssey through the CIA black sites where, Martins noted, “unauthorized, improvised, inhumane interrogation techniques and detention had been used” — including waterboarding in November 2002.
The court has held four secret sessions prior to this week’s, and subsequently released partially censored transcripts of three of them. Nothing has emerged from its last closed hearing, April 25, during which lawyers in the Nashiri case discussed a secret motion on a prosecution plan to have a Yemeni man who was killed in a U.S. drone strike testify through hearsay.