GUANTANAMO BAY U.S. NAVAL BASE, Cuba A Guantanamo war crimes tribunal judge held a closed hearing with lawyers on Wednesday to discuss a defense request to see secret evidence against a prisoner charged with orchestrating the deadly October 2000 attack on the warship USS Cole.
Defendant Abd al Rahim al Nashiri, who could face the death penalty if convicted of terrorism, murder and other crimes, was excluded from the pretrial hearing at the Guantanamo Bay U.S. Naval base in Cuba.
The alleged al Qaeda chieftain is accused of recruiting and supplying two suicide bombers who rammed a boat full of explosives into the side of the USS Cole in the Yemeni port of Aden in October 2000. The blast killed 17 sailors and crippled the ship.
Nashiri's lawyers asked that prosecutors be ordered to turn over two batches of evidence that have been classified as secret
Before he could hear arguments on that request, the judge held a private hearing with the lawyers to determine whether any part of it could be discussed in open court without jeopardizing national security.
The judge, prosecutors and defense lawyers all have government clearances to view Top Secret information but the defendant does not. He was not even brought from his cell to the high-security courthouse on Wednesday.
The hearing ended after about 90 minutes. No explanation was given and a Pentagon spokesman said the transcript would remain sealed.
"Court is in recess until tomorrow morning," said a Pentagon spokesman, Army Lieutenant Colonel Todd Breasseale.
The Guantanamo tribunals were first established by President George W. Bush to try foreign captives on terrorism charges outside the regular U.S. military and civilian courts. The U.S. Supreme Court struck down the first version as unconstitutional in 2006, Congress created a new version later that year and then revamped them under the Obama administration in 2009.
SECRET CIA PRISONS
The current incarnation of the tribunals carries the motto "Fairness, Transparency, Justice," on the official court website. But the secrecy rules are so strict that defense lawyers said they could not even describe generically what evidence they had asked for.
Much of the secret material in the case is thought to involve the time Nashiri spent in secret CIA prisons before he was sent to Guantanamo in 2006. The CIA has acknowledged he was subjected to the simulated drowning technique known as waterboarding and that interrogators stripped him naked, put a hood over his head and tried to scare him with a gun and a power drill.
Since the law bans the use of evidence obtained through torture and cruelty, defense attorneys plan to challenge prosecution efforts to use Nashiri's statements against him.
"You can assume that will be the subject of extensive litigation," defense attorney Rick Kammen told journalists on Tuesday evening.
He also said he expected that significant parts of the trial would be closed to the public.
"There may be some kabuki theater in which we all pretend to be making the real argument but it will not be the real argument," Kammen said.
Prosecutors said the trial would balance the defendant's right to confront his accusers with the government's need to protect national security, and said the secrecy classifications would not be used to conceal wrongdoing.
"Public confidence in these proceedings requires them to be as transparent as possible, while also guaranteeing the accused a fair trial and protecting other public interests under law," the chief prosecutor, Brigadier General Mark Martins, told journalists on Tuesday evening.