Media Appeal Averts Closed USS Cole Case Testimony

FILE - This Nov. 9, 2011 artist rendering shows Abd al Rahim al-Nashiri during his arraignment at the Guantanamo Bay detention center in Guantanamo, Cuba. (AP Photo/Janet Hamlin, File)
FILE - This Nov. 9, 2011 artist rendering shows Abd al Rahim al-Nashiri during his arraignment at the Guantanamo Bay detention center in Guantanamo, Cuba. (AP Photo/Janet Hamlin, File)

The judge in the USS Cole bombing case delayed plans Thursday to hear from the accused bombing mastermind in a closed hearing to give the Miami Herald and other news organizations an opportunity to challenge the closure, according to three attorneys.

Air Force Col. Vance Spath, the judge, had agreed to hear testimony in closed session from defendant, Abd al Rahim al Nashiri, 51. At issue: The Saudi captive accused of orchestrating the Oct. 12, 2000 bombing wants to spend nights at the war court compound, Camp Justice, rather than commute back and forth to the clandestine Camp 7 prison.

His attorney argues the back and forth is traumatic for the man who was subjected to CIA "enhanced interrogation techniques," including waterboarding, in the nearly four years before he got to Guantanamo in 2006.

He faces a death-penalty tribunal, whose start date has not yet been set.. Seventeen U.S. sailors died in the al-Qaida attack on the warship off Aden, Yemen on Oct. 12, 2000. Dozens more were wounded.

Prosecutor Army Brig. Gen. Mark Martins on Thursday opposed open-court testimony, and Spath appeared ready to hear from Nashiri in a closed session. Defense attorney Rick Kammen said in court that a portion of Nashiri's testimony, if not all of it, would be unclassified.

The Herald sent a note into the court notifying the judge that First Amendment attorney David A. Schulz wanted an opportunity to consider whether to challenge the closure.

Schulz in 2012 similarly challenged plans to close a hearing for pretrial testimony from Nashiri. He argued that details of the Saudi's treatment in the CIA Black Sites had already been made public. Since then, even more details have come out, including in the publication last month of a book by a former CIA contract interrogator, James E. Mitchell, a psychologist.

At issue in 2012 was a defense bid to have Nashiri testify in a bid to prevent him from being shackled to the floor during meetings with his lawyer, arguing that re-traumatized him. The Herald and its owner McClatchy Co., The Washington Post and The New York Times were among those challenging closure.

Schulz argued to then-Cole case judge Army Col. James L. Pohl for at very least bifurcation of the testimony, narrowly tailored to protect the portion that was truly classified. In the end, Pohl concluded he could decide the issue without hearing from Nashiri.

Had Nashiri testified on Thursday, it would have been his first testimony at a classified session typically held between prosecutors, defense attorneys and the judge.

Schulz wrote the court: "We represent the Miami Herald, and are writing to request an opportunity to be heard on what I understand is a pending motion to take testimony of the accused in a closed session. We have previously litigated the obligation of the commission to provide public notice and an opportunity to be heard before proceedings are closed."

"We object to the taking of testimony from Mr. al-Nashiri in a closed session without hearing from the press, and without factual findings explaining why a closed session is essential, specifically demonstrating a substantial probability of harm to a compelling interest if the testimony is taken in public."

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