By Carol Rosenberg, McClatchy Newspapers –
MIAMI — 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 Guantanamo 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.
Al-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 al-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 al-Nashiri’s interrogations are still considered national security secrets — for example where the CIA agents conducted them, their identities and perhaps other still-undisclosed techniques.
So, his defense attorney, Rick Kammen, said this week he expected al-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,” Kammen said. “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 Guantanamo 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 al-Nashiri’s shackles during meetings with his lawyers. So far, guards have shackled al-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 Guantanamo 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 al-Nashiri to sit unshackled in court during his Nov. 9 arraignment, and during subsequent hearings Jan 17-18. Al-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 al-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.”
Al-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 al-Nashiri’s transfer to Guantanamo in September 2006 for trial.
Al-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 al-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.
