A military judge Wednesday held the first secret hearing at the Obama-era war court, a 90-minute discussion of a defense bid in a death penalty case to learn more about the accused's treatment in clandestine CIA custody.
Even the accused, Saudi-born Abd al-Rahim al-Nashiri, 47, was locked out of the closed session. It began at 9:03 a.m. and ended at 10:30 a.m.
Al-Nashiri is the alleged architect of the October 2000 attack on the USS Cole that killed 17 U.S. sailors, and his lawyers had argued that he should be present. The government objected, and the judge agreed.
"He does not have a clearance," said Army Brig. Gen. Mark Martins, the chief war crimes prosecutor, telling reporters on the eve of the hearing that classified information would be discussed.
There was no open session at all Wednesday. Col. James Pohl, the judge, recessed after the secret hearing until Thursday morning.
At issue were two defense motions seeking discovery in the case. The Pentagon kept the motions under seal at the war court, but notations on the docket made clear that there was a defense bid to get the government to turn over information about al-Nashiri's capture and treatment during his four years in the CIA's secret overseas prison network before his transfer to military custody in Guantanamo in 2006.
Martins would not go into detail on Wednesday morning after the session but said defense lawyers agreed to postpone court arguments on the two sealed motions until a future al-Nashiri hearing.
A 2010 U.N. Human Rights Council report said that al-Nashiri was held in Poland and probably also in Thailand. While in the secret CIA prison network, according to declassified abuse investigations, U.S. agents interrogated him at gunpoint, with a revving power drill to his head, and while hooded -- techniques his defense team considers torture that makes certain evidence inadmissible at trial.
Al-Nashiri lawyer Rick Kammen said the war court rules coupled with what he termed "the government's illegal over-classification" of case information left the defense with no choice but to argue its motion in secret. Pentagon officials argue that reforms introduced at the war court during the administration of President Barack Obama have made the process more favorable to the accused and more transparent.
Kammen said Tuesday evening before the secret session, "When you get past some of the superficial stuff nothing has really changed since 2006." Defense lawyers are demanding more resources and dispute the government's rules of classification surrounding the former CIA captives. "And in that sense, the system is not any more open, transparent or fair."
Countered Martins, the chief prosecutor: "This is an adversarial process. It is as open and transparent as we can make it."
Fourteen media organizations had filed a motion opposing plans to close the hearings, but neither the judge nor lawyers made any mention of it in a discussion Tuesday afternoon mapping out plans to start in secret Wednesday. To lawfully close, First Amendment attorney David Schulz argued in the motion, the judge would have to articulate an explanation for the public record on what compelled closure -- such as why disclosure would have a substantial probability of risking American national security or personal safety.
Judge Pohl did not. "To me, the starting point is what the government doesn't want to be revealed," the judge told the prosecution and defense on Monday during the initial public hearing. "If there's other stuff they don't care if it's revealed, they're the gatekeeper on that as far as I'm concerned."
Schulz, who was not present at Guantanamo for the hearing, had no comment.
Martins told reporters that national security and the rules compelled secrecy for the hearing.
A war court source with knowledge of the process said a court stenographer with top secret clearances created a typewritten record of the secret hearing, but that transcript was to be sealed and not released.
Al-Nashiri, who allegedly served as al-Qaida's chief of Arabian Sea operations, was not even brought to the war court compound on Wednesday. He chose to stay at the prison camp rather than be moved by guards to wait out the closed session in a holding cell at Camp Justice.
Martins, who often touts transparency at the war court, said that closure would be "based upon a compelling interest preserved on the record for appellate review" and that "embarrassment is not a legal basis for closure, nor is the fact that a law may have been broken."
Admissions made under torture or coercion are forbidden at the Guantanamo trials. But treatment may be brought before a panel deciding whether to hand down a death penalty after a conviction. In addition, defense lawyers are trying to surface secret information about what happened to CIA captives to argue that some evidence beyond confessions may be tainted by torture.
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