FORT MEADE, Maryland — US news organizations made an unprecedented request Wednesday for a Guantanamo military court to make public testimony from the accused mastermind of the USS Cole bombing.
But the judge in the case, Colonel James Pohl, averted a fight over freedom of the press by issuing a ruling that shelves potential testimony from Abd al-Rahim al-Nashiri about his treatment at the US naval base in southern Cuba, amid allegations he was tortured by the CIA.
He did not rule on a request by a consortium of news groups — including Fox News, The New York Times, The Washington Post, National Public Radio and The Miami Herald — to keep the hearing open.
Instead, Pohl ordered that the Saudi-born suspect be allowed to meet with his lawyers without being shackled.
Attorney David Schulz, representing the media organizations, cited the First Amendment of the US Constitution that protects freedom of speech and the press in making his request. He said the US public had a stake in the hearing for the man accused of being behind the 2000 attacks that killed 17 American sailors.
The court pleading marked the first time that a judge in the military jurisdiction heard from an attorney other than a direct party in a Guantanamo-related tribunal.
Pohl could still rule on the request at a later date when Nashiri is brought to testify or during a trial not expected before the end of the year.
Human Rights Watch hailed Pohl’s “important precedent” in establishing the public’s interest in open proceedings.
“The true test, however, will come when a former CIA detainee actually does want to testify about the torture he experienced,” it added in a statement.
Nashiri’s interrogation at the hands of the CIA “has already been the subject of significant public and press attention worldwide, presents issues of profound public interest and concern,” Schulz wrote in a letter to the judge.
“Blanket closure of his testimony at the hearing would pose the risk of undermining the legitimacy and credibility of the military commissions in general.”
The treatment of terror detainees is part of a long-running debate over the use of torture during interrogations that has raged for years among US policymakers and the public.
Schulz said in court that much of what the defendant is likely to describe is already accessible and a matter of public record.
“A great deal of information is known about this defendant… information that the whole world knows or can find in two seconds on the Internet,” he said.
His attorneys wrote that while held at secret CIA “black site” prison, Nashiri was “tortured while shackled.”
“As a result of the torture, the use of restraints is a retraumatization of his torture and interferes with his communications with his counsel,” his attorneys wrote in a court brief.
At the time of Nashiri’s arraignment, which came after US President Barack Obama reversed course and ordered controversial military trials to resume at the US naval base, the Pentagon published a 200-page document of regulations covering the special military tribunals.
The rules aimed to make proceedings more accessible to public, media and families.
Schulz stressed that court officials already have the means to prevent the disclosure of information that could harm national security.
Censors can use a 40-second delay button to prevent any testimony deemed classified to be heard by media or others monitoring the trial via closed-circuit television at a separate hearing room at Guantanamo or at the US Army facility in Fort Meade, Maryland.
Military censors monitoring the trial will have a “kill switch” allowing them to abruptly stop the audio and video feed in order to protect classified information.
Nashiri could face the death penalty if convicted of planning and preparing the October 2000 attack on the US Navy destroyer in Yemen’s port of Aden.
He is also accused in a January 2000 attempted attack against another American warship in Aden, the USS The Sullivans, and of planning a strike on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002 that left one Bulgarian crew member dead and caused a 90,000-barrel oil spill.