The most interesting and significant testimony at the war court so far — a Saudi captive’s account of how CIA agents interrogated him while shackled in secret custody — is likely to be unseen and unheard by the public when pre-trial hearings reconvene in the USS Cole case at Guantánamo next month.
Defense lawyers write in a motion unsealed Monday that they’ll call Abd al Rahim al Nashiri, 47, as a witness to describe the trauma of his CIA interrogations in their bid to win a court order that he be unshackled during prison camp meetings with his attorneys.
Nashiri is accused of orchestrating al Qaida’s suicide bombing of a U.S. Navy warship, the USS Cole, off Yemen in October 2000. Seventeen U.S. sailors were killed in the attack, and the Pentagon war court prosecutor is pursuing this case as its first death-penalty trial.
Declassified abuse investigations show that, while Nashiri was shackled, CIA agents waterboarded him, racked a semi-automatic handgun near his head and used a power drill to frighten him in 2002 and 2003.
But other details of Nashiri’s interrogations are still considered national security secrets — for example where the CIA agents did it, their identities and perhaps other still-undisclosed techniques.
So, his defense attorney, Rick Kammen, said this week he expected Nashiri’s April 11 testimony to be closed by Army Col. James Pohl, the war court judge, who in January referred to “the classified nature of said treatment.”
“If the prosecution seeks to have that testimony be public, we would not oppose that request,” said Kammen. “But we doubt such a request will be coming from the prosecution. Transparency only goes so far.”
At the Pentagon, the war court spokesman, Army Lt. Col. Todd Breasseale wouldn’t say whether the court would be open during the testimony. Under Obama administration war court reforms, the commissions follow the federal Classified Information Procedures Act and other federal case law in deciding whether to open or close, he added.
The chief prosecutor has repeatedly described the Guantánamo cases as engaging in a balancing act between the public’s right to see the proceedings and the need to safeguard “classified information involving sources and methods of intelligence-gathering.”
“Prosecutors and judges — military or federal — do not have the discretion to declassify information,” Army Brig. Gen. Mark Martins said in a statement Monday night. “We must interpret and apply the law to carry on the trial as transparently as possible but while also protecting these other interests.”
At issue in the motion is whether the judge will order the prison camps commander, a Navy admiral, to remove Nashiri’s shackles during meetings with his lawyers. So far, guards have shackled Nashiri’s ankles to the floor, and stepped outside the meeting.
His lawyers argue he is so traumatized by his CIA treatment — they claim he was in chains or shackled for about four years at secret CIA prisons — that being shackled at Guantánamo impairs his ability to work with his lawyers. They want him to explain it to the judge next month.
One reason they want him unshackled: His lawyers want him to demonstrate for his legal team some aspects of his treatment — “how events occurred,” they write — as they prepare for the trial before a military jury, now slated to start Nov. 9.
To bolster their argument, the defense lawyers write in their 15-page brief that the judge allowed Nashiri to sit unshackled in court during his Nov. 9 arraignment, and during subsequent hearings Jan 17-18. Nashiri was also “unrestrained and could move around freely” in recent meetings with International Red Cross delegates at the prison camps, they wrote.
The prosecution response to the motion was still under seal at the war court on Tuesday. The Pentagon spokesman, Breasseale, wouldn’t say why the prison keeps Nashiri shackled at meetings with his lawyers but allowed him to sit without restraints alongside them at the war court compound, Camp Justice.
“We do not discuss cases that are currently under litigation,” he said, “nor do we discuss the security apparatus around the detainees.”
Nashiri’s lawyers argue in their brief that “the act of shackling is a retraumatization of past torture” by the CIA before President George W. Bush ordered Nashiri’s transfer to Guantánamo in September 2006 for trial.
Nashiri’s lawyers propose to have a New York psychologist, Barry Rosenfeld of Fordham University, testify as well.
Reached by The Miami Herald on Monday, Rosenfeld declined to say whether he had met Nashiri or had obtained the top secret clearances required to enter the maximum-security courtroom during the Cole proceedings. “I can’t confirm or deny that I’m allowed to speak,” he said.
The Pentagon whose war court website boasts “transparency, fairness, justice” permits reporters and legal observers to watch the military commissions from a room behind the court whose audio has a 40-second delay — time to let an intelligence agent censor classified information that might come up during open proceedings.
The war court manual also permits the judge and prosecution to craft summaries of classified information. The accused and his lawyers see only the summaries, not the underlying information. The manual also allows the military to close the court to the public for testimony involving classified information that the defense lawyers and defendants already know — such as what the CIA did to Nashiri.
Attorneys at the American Civil Liberties Union were considering how they’d protest a closure, said Zachary Katznelson, a sometime Guantánamo war court observer who urged the government to promptly declassify material involving the alleged Cole bomber’s CIA interrogations.
“U.S. officials have repeatedly spoken about and acknowledged the torture techniques the CIA used on Mr. al-Nashiri — from waterboarding to sleep deprivation to numerous other brutal tactics,” he said. “Since this is all already public, there is no valid reason to censor Mr. al-Nashiri’s statements about what the CIA did to him.”
“If the U.S. government wants military commissions to be perceived as legitimate, “ he added, “the commissions cannot censor testimony about torture and abuse committed by the CIA. Particularly not in a death penalty case where the issue is front and center.”