GUANTANAMO BAY NAVY BASE, Cuba — The chief war court judge Tuesday agreed to let a First Amendment attorney argue against closure of the irst ever military commissions testimony by a captive about CIA interrogations that the government contends are secret.
New York lawyer David A. Schulz emerged from a meeting with Army Col. James Pohl, the judge, saying he would be able to follow defense lawyers Wednesday morning with an objection by members of major U.S. news organizations to plans to close portions of a pre-trial hearing in the capital case of alleged al-Qaida bomber Abd al Rahim al Nashiri.
Prosecutors allege that Nashiri orchestrated the October 2000 suicide bombing of the USS Cole that killed 17 American sailors. If convicted, he could face military execution.
"Judge Pohl has now agreed to entertain the objections by the press to closing a hearing where the defendant may testify," Schulz said. "This will be the first time that a non-party has been allowed to make an access motion to a military commission at Guantanamo. This is an encouraging sign."
This week, Nashiri’s defenders intend to call him to testify in a closed military commissions session about his treatment at secret overseas CIA prisons in 2002 and 2003 when, according to declassified U.S. documents, he was waterboarded, threatened with a handgun and a power drill to get him to confess to his role as an alleged al-Qaida terror planner.
At issue is how much, if any, of the testimony — and discussion in advance about the testimony —should be held in camera, between the judge and lawyers at the war court complex.
Schulz filed a protest on behalf of a consortium of news organizations, ranging from The Miami Herald and its corporate parent, The McClatchy Company, to Fox News to The New York Times and National Public Radio over war court secrecy last week.
He argued it is not only in the public’s interest to know what the CIA did, but also that some of the so-called secret interrogation techniques have already been disclosed in properly declassified CIA documents.
It was not known if he would be allowed to address the court when he joined journalists departing from Andrews Air Force Base outside Washington D.C. on Tuesday morning. Tuesday evening, he said the judge had granted him access to the maximum-security bunker-like Expeditionary Legal Compound, where spectators hear the proceedings on a 40-second delay in case somebody spills state secrets.
The judge was expected to rule by Wednesday afternoon how much of this week’s hearings will be seen in public.
Schulz also said that the hearings, once expected to end by Friday morning could extend through the weekend.
“This is arguably the first major test of this iteration of the commissions,” said Eugene Fidell, who teaches military justice at Yale Law School. “Somebody has got to take a hard, independent look at what’s classified and why.”
“If the purpose of this is to avoid embarrassment to the government, that is not a valid reason to conceal anything,” he said. “If the purpose is to cover up criminal activities, that is not a valid reason to conceal it, either.”
Pentagon officials say the closure of the hearing is driven not by individual desire but by rules at the Obama-era war court that protect national security secrets that are properly classified.
The Pentagon’s chief war court prosecutor, Brig. Gen. Mark Martins, has said his attorneys are forbidden by law from building their cases around torture or other coerced evidence.
Defense lawyers, however, argue that the war court judge, Army Col. James Pohl, needs to hear from Nashiri himself about his CIA treatment in order to decide whether to order the Guantánamo prison to unshackle Nashiri at the ankles during trial preparation with his lawyers.
The media challenge is likely to test how much the public might see of the coming conspiracy trial of five alleged conspirators in the 9/11 terror attacks — chief among them alleged mastermind Khalid Sheik Mohammed. They, too, could face military execution if convicted of war crimes.
“This is going to be a recurring issue,” said Fidell, noting that the chief prosecutor, Martins, has been boasting of new transparency in the war court that Obama reformed — most recently in an April 3 talk at the Harvard Law School.
It was unclear whether Nashiri would testify at all. Not all briefs to be discussed this week were released by the Pentagon on Monday night. But one source aware of the motions said the government had opposed letting the Saudi testify.
The government has argued in the past that the prison camps chief, a Navy admiral, should be allowed to secure his 171 captives as he sees fit.