When the war court reconvenes this week, pre-trial hearings in the case of an alleged al-Qaida bomber will be tackling a government motion that’s so secret the public can’t know its name.
It’s listed as the 92nd court filing in the death-penalty case against a Saudi man, Abd al Rahim al Nashiri, who was waterboarded by CIA agents.
And in place of its name, the Pentagon has stamped “classified” in red.
It’s not the first classified motion in the case against the 48-year-old former millionaire from Mecca accused of orchestrating al Qaida’s October 2000 suicide bombing of the USS Cole warship off Yemen. Seventeen sailors were killed in the attack, and the prosecutor proposes to execute Nashiri, if he’s convicted.
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Also on the docket for discussion this week is a classified defense motion that asks the Army judge to order the government to reveal information “related to the arrest, detention and interrogation” of Nashiri. By the time he got to Guantánamo in 2006, according to declassified investigations, CIA agents had held him at secret overseas prisons for four years during which, according to declassified accounts, he was waterboarded and interrogated at the point of a revving power drill and racked pistol.
But what makes the no-name government motion so intriguing is that those who’ve read it can’t say what it’s about, and those who haven’t don’t have a clue. Not even the accused who, unless the judge rules for the defense, is not allowed to get an unclassified explanation of it — and cannot sit in on the court session when it’s argued in secret.
The motion was so secret that Nashiri’s Indianapolis-based defense attorney said members of the defense team would not characterize it over the phone. “Literally, I had to fly to Washington D.C. to read it,” said attorney Rick Kammen of Indianapolis, a career death-penalty defender whom the Pentagon pays to represent Nashiri.
Army Brig. Gen. Mark Martins, the Pentagon’s war crimes prosecutor, counters that “there are important narrow occasions where certain interests can allow that to happen,” says Martins, “to protect national security interests.”
Martin said his office doesn’t use secrecy to cover up embarrassing episodes. Rather, he has said the court is engaging in a balancing act between national security and the public’s right to know.
This week, the public will get to hear lawyers debate fundamental legal issues — whether an accused has a right to confront his accuser, notably whether FBI agents can offer information taken from a now dead man in Yemen a decade ago, and whether conspiracy can be a war crime.
But the secrecy at the Pentagon court whose motto is “Fairness — Transparency — Justice” is also garnering attention.
A First Amendment attorney for 14 news organization, including The Miami Herald, filed a motion with the judge May 15 opposing “any effort to close any portion of the future hearings in this historic prosecution.”
In an interview, Yale law instructor Eugene Fidell compared having a motion with no name filed under seal and argued in closed session to playing the old parlor game Charades — “in the dark.”
President George W. Bush created the special military tribunals in the aftermath of the Sept. 11, 2001 attacks, an original format that was struck down by the U.S. Supreme Court in June 2006. U.S. military officers serve as judge, jury, defense and prosecution lawyers in the cases against foreign captives who were interrogated years ago without benefit of a lawyer. Secret motions will do little to inspire confidence in a court that’s already controversial, said Fidell, an expert on military justice.
Bush reformed them in collaboration with Congress around the time the CIA delivered Nashiri, alleged 9/11 mastermind Khalid Sheik Mohammed and a dozen other so-called “high-value detainees” to Guantánamo for trials, in September 2006. Then-Sen. Barack Obama was critical of the system but kept it once he became president, and tweaked it again to give the accused greater protections.
But certain aspects of the secrecy continue. Both Nashiri and five 9/11 defendants claim they were tortured in secret CIA custody, but the public cannot learn what they say happened to them, where or who did it. Details of the Bush era’s so-called Rendition, Detention and Interrogation program remain classified, although in recent hearings the defendants and their lawyers have been allowed to say the word “torture” without a censor hitting a white noise button.
Meantime, the no-name motion remains a mystery.
“I’m not sure what they’re up to,” says retired Air Force Col. Morris Davis, a former chief Guantánamo prosecutor who resigned in protest to what he saw as political meddling in the process. One possibility, he said, is the government may be trying to wall of inquiry into “how Nashiri was apprehended, where the information came from” and what an undisclosed foreign intelligence agency “did with him before we got him” at Dubai airport in late 2002.
Even though the names of some foreign countries where the CIA had prisons have leaked, those nations’ participation is still classified, ostensibly to protect relationships with countries that help the United States hunt down al-Qaida and other terror groups.
But with no name on the motion to provide a clue, Davis is at best offering a possible explanation for the secret motion.
And that’s something that Fidell says has the effect of “eroding public confidence” in Guantánamo justice.
“We’re supposed to be talking about the rule of law. You can have an all-star team of justices — Cardozo, Brandeis, Holmes, John Marshall, Stevens, Brennan, take your pick — and if they’re working in a closet you can forget about it in terms of public confidence in the administration of justice.”
“You could have a forum that convicted only the guilty, acquitted only the innocent and rendered reasonable sentences,” he said. “And if it was done in the dark it wouldn’t foster public confidence.”