GUANTANAMO BAY NAVY BASE, Cuba -- A military judge held a secret war court session Saturday on defense lawyers' efforts to uncover evidence of what the CIA did to the alleged USS Cole bomber during years in the agency's clandestine overseas prison network.
Both the public and the alleged terrorist were excluded from the 111-minute hearing in the case that seeks the execution of Abd al Rahim al Nashiri as mastermind of the Oct. 12, 2000, terror attack that killed 17 U.S. sailors off Aden, Yemen.
Only prosecutors and defense lawyers attended the hearing with the judge, Army Col. James L. Pohl, and a court recorder creating a classified transcript of the proceedings.Nashiri, 49, spent four years in secret CIA prisons where, according to declassified reports, agents waterboarded him and interrogated him nude with a hood on his head and handcuffs on his wrists. One U.S. agent threatened to kill the Saudi with a power drill and handgun, and threatened to have his mother raped.
At issue Saturday, according to the judge's closure order, was some aspect of a sweeping motion by Nashiri's lawyers that seeks a list of the places where the CIA kept Nashiri from 2002-2006. It also seeks details of his interrogations; the names of the agents and other staff at the CIA prisons, including medical personnel; blood and saliva tests conducted on him and drugs given to him; and White House memos on the secret program.
"The government cannot be allowed to withhold information related to Mr. al-Nashiri's detention and torture in blacksites," the lawyer argued in the motion. "The inhumane treatment Mr. al-Nashiri sustained in these blacksites is one of the many areas of mitigation the defense must independently investigate to meet the standard of care in this capital case."
Judge Pohl's order said he closed the hearing "to protect information that, if publicly disclosed, would pose a grave danger to national security." He ordered a transcript released later, "excising only classified national security information."
Pohl also noted in his order that the material was not something prosecutors planned to present at trial, now scheduled to start Sept. 2.
Nashiri's lawyers filed the motion with the judge in September 2012. A federal prosecutor on loan to the case, Anthony Mattivi, responded in a court filing two weeks later that Nashiri's team had already gotten "information that is relevant, material to the preparation of the defense, and necessary." Now it's up to the judge to decide.
This is the second closed hearing of the case. Pohl excluded the accused terrorist and public from a full hearing for the first time in June. Ten days later, the Pentagon released a partially censored transcript that showed that the government had found CIA photos of Nashiri sought by defense lawyers nine months earlier.
The chief prosecutor, Brig Gen. Mark Martins, says the closures are narrowly tailored to protect classified information, not to cover up crimes or embarrassment.