USS Cole case prosecutors, judge huddle

By CAROL ROSENBERG | The Miami Herald | Published: May 30, 2014

GUANTANAMO BAY NAVAL BASE, Cuba — USS Cole case prosecutors met privately with the war court judge Friday — a practice permitted in military commissions but rarely used — in a bid to persuade him to abandon his sweeping CIA discovery order.

Separately, a staff member at the Senate Select Committee on Intelligence clarified Friday that no one at the war court had requested a copy of its classified “Torture Report” describing the CIA’s treatment of secret prisoners in spy agency custody before they were dropped off at Guantanamo in September 2006.

Lawyers for Abd al-Rahim al-Nashiri, 49, who was held for four years by the CIA, asked the judge this week to get them a copy of the report as they prepare for the Feb. 9 start of his death-penalty tribunal.

The Washington Post reported that the Senate document describes, among other things, al-Nashiri’s waterboarding and abusive interrogations, as well as analysis that officials hyped the Saudi’s role as mastermind of the suicide bombing of the warship that killed 17 U.S. sailors off Yemen on Oct. 12, 2000.

In court arguments Wednesday, a case prosecutor left ambiguous whether a request had been made to the Senate committee for a copy of the more than 6,000-page report. It’s classified and kept in a safe.

“We are actively seeking it. And that is what I would submit of where we are at,” Navy Cmdr. Andrea Lockhart, the case prosecutor, told the judge, Army Col. James L. Pohl.

Friday, a Senate Intelligence Committee staff member told the Miami Herald, on condition of anonymity because that person was not authorized to release an official statement, that “we have not been asked for a copy of the report for military commissions purposes.”

Separately, the CIA is evaluating the executive summary of that report at White House request to see what portion could be declassified and made public.

“The executive summary and findings and conclusions of the report are undergoing a declassification process, and we look forward to that being completed and those documents being released publicly,” the staff member said. “We are taking no action separately at this time.”

Friday’s hearing was cloaked in secrecy. Prosecutors led by Army Brig. Gen. Mark Martins met with Pohl, the colonel presiding in the case, for a process that’s described in the war court manual as a “presentation” needed to protect state secrets that mimics a federal court procedure.

At issue was Pohl’s April 14 order to the U.S. government to give defense attorneys, in classified fashion, a chronological accounting of what the spy agency did with al-Nashiri from his capture in 2002 to his arrival at Guantanamo — including the names of countries where he was held and medical, intelligence and guard staff at the secret prisons.

Defense attorneys in open court Wednesday urged Pohl not to reverse himself. But prosecutors argue he went too far in the order and are invoking a national security exception. Left unclear in the public argument is what would be at risk by giving the information to lawyers with top secret clearances and bound to keep the same secrets as the prosecution.

Under military commission rules, the court was supposed to transcribe Friday’s private hearing and, if the judge does what the prosecutor wants, the transcript would be sealed in a top-secret site for potential appellate review, in case of a conviction.

Friday’s was not the first such ex-parte, in camera (one party, in chambers) hearing of the al-Nashiri case — and apparently not the first where the judge went along with a prosecutor’s private national security request.

A notation in the Guantanamo war court website showed that in 2012, prosecutors submitted 800 pages of secret filings that defense lawyers could not see and then held a May 8, 2012, hearing. It was captured in 25 pages and sealed at a top-secret site in Alexandria, Va.

Martins did not describe what happened at Friday’s session in a statement he issued afterward that declared “a significant amount of work was accomplished” in a three-day hearing that was “partially foreclosed from public attendance due to a classified session” on Thursday.

He also noted that, in the al-Nashiri case so far, “over 94 percent of that process has been open to the public.”

In an unrelated war court development Friday, the attorney for a Saudi man accused as a co-conspirator in the Sept. 11, 2001, terrorist attacks said his client, Mustafa al-Hawsawi, 45, wants his own death-penalty tribunal.

“A joint trial invites a verdict of guilt by association,” attorney Walter Ruiz said in a statement to the Miami Herald, which also said that al-Hawsawi is “not interested in more delays.”

A courtroom sketch of USS Cole bombing case defendant Abd al-Rahim al-Nashiri during his military commissions arraignment November 9, 2011 in Guantanamo Bay, Cuba.


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