KRWG

Should Alleged Cole Bomber's Testimony Be Secret?

Apr 11, 2012
Originally published on April 11, 2012 9:44 am

In a courtroom at Guantanamo Bay on Wednesday, the man accused of masterminding the bombing of the USS Cole in 2000, Abd al-Rahim al-Nashiri, is expected to testify about the more than four years he spent in secret CIA prisons. Al-Nashiri is one of three terrorism suspects the U.S. government has admitted to waterboarding, so his testimony could be explosive. And that's why, critics argue, the government is trying to ensure that al-Nashiri's testimony be heard in secret.

"We know that he was held in CIA black sites in Poland and Thailand," says Melina Milazzo, a lawyer at Human Rights First. "We know from the CIA inspector general's report that he was tortured, including being waterboarded. So while what he is going to say probably won't be new, what people could hear, for the first time, is a detainee in U.S. custody speaking about the CIA interrogations as a firsthand experience — and that would be very powerful."

The government says the session needs to be closed because of the likelihood that classified information will be revealed. Al-Nashiri's defense team, and media outlets including NPR, have argued that the session should be open given that much of what happened to the man accused of orchestrating a suicide bombing against the Cole in Yemen has already been revealed — by the CIA itself. NPR is part of a group of news organizations that filed an objection to the Pentagon's effort to close the al-Nashiri proceedings. The group sent an attorney to Guantanamo to argue for an open hearing.

This latest locking of horns has become an early test of just how transparent the military commissions system will be in practice and whether it can convince observers that military commissions can provide as fair a trial as a U.S. criminal court.

Al-Nashiri's actual trial doesn't start until November. This latest kerfuffle over his testimony is linked to a pretrial motion about how he should be restrained when he is meeting with his lawyers. When he is in court, the 47-year-old Saudi doesn't have to wear leg irons. Guards bring him in in handcuffs, but the handcuffs are removed once he reaches the defense table.

When his lawyers meet with him at the prison at Guantanamo, however, he is shackled to the floor. In fact, one of his lawyers told NPR that before al-Nashiri's arraignment several months ago, he had never actually seen his client walk — and he has been al-Nashiri's lawyer for years. The defense motion says the shackles that al-Nashiri wears when he meets with his lawyers at the prison remind him of his time in CIA custody, and that the experience is therefore traumatic. To drive the point home, al-Nashiri is expected to take the stand and to explain it to the judge himself.

A Bit Of A Delay

Watching a military commissions trial from the viewing gallery can be a little surreal. The action in the courtroom is out of sync with what observers can hear in the gallery because all the sound in the viewing room is on a 40-second delay.

So, for example, by the time the gallery hears the judge introduced and the ritual words, "All rise," the judge has already been in the courtroom for 40 seconds. Attorneys are still making impassioned arguments on the closed-circuit television in the gallery nearly a minute after everyone has watched them sit down.

The delay is supposed to give intelligence officers time to press a button that covers any classified information that might be revealed with white noise. Defense attorneys argue that al-Nashiri won't publicly reveal anything secret during his testimony because the censors in the courtroom can prevent that from happening. When something sensitive is said, they can just push the button and provide the gallery with white noise instead. But when it comes to the testimony of al-Nashiri, the prosecution has argued that the white noise won't be enough.

"No one has said that our nation's secrets are an open book," said Brig. Gen. Mark Martins, the chief prosecutor for the military commissions. "Troop movements, intelligence about particular groups. ... There really are secrets that have to be protected."

Attorneys close to the case say the government's concern is more basic. Prosecutors are worried that al-Nashiri's testimony will provide a chilling first-person account of what CIA interrogations actually entailed — and it might prove to be a rougher version of events than the CIA inspector general's report chronicled.

Martins says that isn't the case. The government doesn't want the session closed to save itself embarrassment about the black sites. There are genuine concerns about national security, he said. "I think you can imagine situations in which there is still information that needs to be protected, even if a law was broken," he said. "The reason for holding it back can't be that something was embarrassing or a law was broken."

Broader Principle At Stake

Sam Rascoff, a professor of national security law at New York University, says there is a broader principle at stake: the openness of the commission proceedings themselves. If al-Nashiri's testimony is held in secret without any observers, it suggests the commission process isn't open at all. And that's a sharp contrast with federal criminal courts.

"We expect federal criminal trials to be open proceedings," he said. "We could walk into a courtroom tomorrow in New York or anywhere across the country and expect to take a seat and watch a criminal trial unfold. We can watch the jurors. We can watch the prosecutors and the defense and the witnesses and so forth. Quite different is the circumstance in the military commission. And the defense is trying to surface those differences prominently and early on."

The other problem, Rascoff says, is that the officials who are deciding whether to close a hearing at Guantanamo aren't independent, like a federal judge would be. "It's ultimately the government, the same people who have a percentage in keeping something secret, who make the decision to do so," he said. "And that is bad optics."

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STEVE INSKEEP, HOST:

Today, a terror suspect appears in a military courtroom at Guantanamo Bay, Cuba. He's accused of masterminding the bombing of the USS Cole, the Navy ship struck while in Yemen in 2000, killing 17 Americans. U.S. officials admit that Abd al-Rahim al-Nashiri was waterboarded during interrogation.

RENEE MONTAGNE, HOST:

He was held at by the CIA at secret locations for years. Now he will talk about what happened in CIA custody. What he says could make for riveting listening, were it not for one detail. The government wants his testimony heard in secret.

INSKEEP: NPR's Dina Temple-Raston reports on the legal argument being made today to make the trial public.

DINA TEMPLE-RASTON, BYLINE: Watching a military commissions trial from the viewing gallery can be a little disconcerting. What you see in the courtroom and what you hear in the gallery don't quite match. All the sound in the viewing room is on a delay - a 40-second delay, to be exact.

MELINA MILAZZO: And so there's all sorts of sort of surreal moments.

TEMPLE-RASTON: Melina Milazzo is with Human Rights First.

MILAZZO: Where reality in the courtroom and reality of what you're hearing aren't in real time.

TEMPLE-RASTON: So, for example, by the time the gallery hears the judge introduced and the words all rise, the judge has already been in the courtroom for 40 seconds. The delay gives intelligence officers time to press a button that covers any classified information piped into the gallery with white noise. But the Pentagon says that when it comes to the testimony of al-Nashiri, that white noise won't be enough, and that's why they want the hearing held in secret. General Mark Martins is the chief prosecutor at the military commissions.

GENERAL MARK MARTINS: No one has said that our nation's secrets are an open book. Troop movements, intelligence about particular groups - there really are secrets that have to be protected.

TEMPLE-RASTON: Not in this case, say critics. They argue that al-Nashiri will be testifying to information that was made public by the CIA itself.

MILAZZO: We know that he was held in CIA black sites in Poland and Thailand. We know that he was tortured, including being waterboarded.

TEMPLE-RASTON: Again, Melina Milazzo.

MILAZZO: So while we know about this information, this will be the first time that a detainee in U.S. custody would be able to speak about it in his firsthand experience.

TEMPLE-RASTON: Critics of the commission say that's exactly what prosecutors don't want: a firsthand account of what happened, possibly with more detail than has been public before - for example, what CIA interrogations actually entailed. General Martins says that isn't the case. He said that the military commissions won't close a session just because something might be embarrassing or unlawful. There has to be a legitimate national security concern.

MARTINS: I think you can imagine situations in which there is still information that needs to be protected, even if a law was broken. The reason for holding it back cannot be that a law was broken.

SAM RASCOFF: I'm Sam Rascoff. I teach the law of national security at New York University.

TEMPLE-RASTON: Rascoff says there's a broader principle at stake: the openness of the commission proceedings themselves. These are the courts that, just weeks from now, will be trying the men accused of plotting the 9-11 attacks. If al-Nashiri's testimony is held in secret, it suggests the commission process isn't open at all, and that's in sharp contrast with federal criminal courts.

RASCOFF: We expect federal criminal trials to be open proceedings. You and I could walk into a courtroom tomorrow in New York or anywhere across the country and expect to take a seat and watch a criminal trial unfold, watch the jurors, watch the prosecutors, watch the defense lawyers and the witnesses and so forth. Quite different is the circumstance in the military commission, and the defense is trying to surface those differences prominently and early on.

TEMPLE-RASTON: The other problem, Rascoff says, is that the officials who are deciding whether to close a hearing at Guantanamo or not aren't independent, like a federal judge would be.

RASCOFF: It's ultimately the government, the same people who have a percentage in keeping something secret, who end up making the decision whether to do so.

TEMPLE-RASTON: NPR is part of a group of news organizations that filed an objection to the Pentagon's effort to close the al-Nashiri proceedings. The group sent an attorney to Guantanamo to argue for an open hearing. Dina Temple-Raston, NPR News. Transcript provided by NPR, Copyright NPR.