Pentagon prosecutors and defense lawyers in the USS Cole death penalty case held the first closed hearing of the Obama war court Friday, a 78-minute secret session that excluded both the public and the accused al-Qaida terrorist.
Army Brig. Gen. Mark Martins, the chief prosecutor, disclosed the length of the national security session but gave no details. He said the judge ordered production of a redacted transcript but gave no timetable for release.
“There was a secret session. That’s all I can say,” said veteran criminal defense lawyer Rick Kammen after the hearing on a subject so sensitive the motion being argued was called CLASSIFIED on the war court docket. In red.
For the occasion, Kammen was sporting a kangaroo lapel pin. “Real justice occurs in the sunshine, not in secret,” he said, ducking every question about the first closed hearing of President Barack Obama’s war court.
How long did it last? No comment. Were there witnesses? He would not say. Neither would the general, who said a transcript of any unclassified portions might make clear if anyone testified.
It was the first closed hearing under the Military Commissions Act of 2009, the war court Obama reformed to give the accused terrorists greater rights. Kammen said, however, the closed hearing violated the rights of his client, Abd al Rahim al Nashiri, who got to Guantánamo in 2006 after four years of secret CIA custody that included waterboarding and interrogating with a revving power drill and racked pistol.
Nashiri, a 48-year-old former millionaire from Mecca, Saudi Arabia, is accused of engineering al-Qaida’s suicide attack on the USS Cole warship off Yemen in October 2000.
Seventeen sailors died, including Jesse Nieto’s 24-year-old petty officer son, Marc.
“This henchman planned it and murdered our 17 sailors in 2000,” Nieto said. “The Constitution is great. But sometimes I get a little bit upset when someone uses it for their benefit and it hurts the American public.”
Friday’s session was in the fourth day of a week-long pre-trial hearings that touched on such complex legal issues of whether terrorism and conspiracy are legitimate war crimes and more fundamental topics of whether the government had eavesdropped on meetings between Nashiri and his lawyers.
The judge, Army Col. James Pohl, was expected to issue written rulings later.
Thursday evening, he invoked the potential for “grave damage to national security” to justify closing his court.
Pohl said Pentagon prosecutors, in a secret motion that defense lawyers could not see, demonstrated “compelling governmental interests that public disclosure could result in grave damage to national security.”
At risk, he said, were “intelligence or law enforcement sources and methods.”
The judge said he excluded Nashiri since he was “not the source of the classified information.”
Nashiri’s attorney, Kammen, objected, saying the closure violated the Military Commissions Act, treaties, Nashiri’s right to be free of cruel and unusual punishment and due process and “whatever 5th, 6th and 8th amendment rights he may have.”
A civilian prosecutor who specializes in terror cases, Joanna Baltes, instructed the judge he had legal authority to not only exclude the public and accused but also defense lawyers from some war court motions. But in this instance, she said, defense lawyers will be permitted to attend.