A military judge invoked the potential for “grave damage to national security” on Thursday and announced that he will exclude both the public and the accused Saudi Arabian terrorist from his pre-trial hearing in the USS Cole bombing death-penalty case — the first closed session of the Barack Obama war court.
The subject of the hearing, to be argued at 9 a.m. Friday, is a mystery. It appears on the war court docket with the word CLASSIFIED in red, but no name.
Army Col. James Pohl, the judge, said Pentagon prosecutors demonstrated a “compelling governmental interest that public disclosure could result in grave damage to national security,” and that disclosure of material at the hearing “could reasonably be expected to damage national security, including intelligence sources and methods.”
But Pohl left open the possibility that the public might be afforded a glimpse later. He said that, sometime afterward, intelligence agents will scrub a transcript of the secret things that were said and release the rest.
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He offered one hint in his explanation of why Abd al Rahim al Nashiri, 48, the accused, cannot attend: He’s “not the source of the information.”
He did not elaborate, however, to say whether it involved things he experienced. Nashiri got to Guantánamo in 2006 after nearly four years in secret CIA overseas prisons where, according to declassified accounts, agents waterboarded and interrogated him at the point of a revving power drill and racked pistol.
It was not clear what, if anything, a consortium of 14 news organizations would do in response to the closure. First Amendment attorney Dave Schulz had earlier argued at the court that any closure had to be narrowly tailored and fully explained. He said Thursday night he was awaiting the judge’s full closure order.
Nashiri, a former millionaire from Mecca, has been described as Osama bin Laden’s chief of Arabian Gulf operations.
He is accused of engineering 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.
Pohl refused a request by his civilian lawyer to let Nashiri speak.
Nashiri sat silently, unshackled through three days of hearings, listening to the proceedings through Arabic translation. At times, he swiveled in his seat in the white prison camp uniform of a cooperative captive.
Brig. Gen. Mark Martins, the chief prosecutor, confirmed Friday’s hearing would be “the first closed session” under the 2009 Military Commission Act — the law that Obama signed reforming the court that President George Bush created. In the past, lawyers have gone in and out of chambers meetings to discuss whether hearings have had to be closed but had so far come up with alternatives.
This time, Pohl ruled that “there are no less restrictive means or reasonable alternatives” to closure.
Nashiri’s civilian attorney, Rick Kammen objected, saying the closure violated the Military Commissions Act, numerous 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 that 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.
The closure motion came at the end of a day that included a guard commander testifying, publicly, about why lawyers couldn’t carry spiral notebooks to their prison camp meetings with Nashiri — capped by the bizarre scene of Kammen handing Army Col. John Bogdan a student notebook and asking for a courtroom demonstration of how swiftly it could be weaponized.
It lay on the witness stand while prosecutors objected. The judge agreed.
Pohl heard argument on several legal motions, including one by the chief prosecutor that terrorism was a legitimate war crime even though a federal court had already ruled unconstitutional a similar but not identical charge of “providing material support for terrorism.”