Judge sidesteps secrecy issue at Nashiri trial in Guantanamo

A possible showdown between the media and the United States Department of Defense relating to access to classified testimony about torture was postponed on Wednesday after a military judge in Guantanamo resolved the issue without making a direct ruling on the issue of public transparency.

The hearing in question involved the possible testimony of Abdul Rahim al-Nashiri, a Saudi of Yemeni origin who is accused of war crimes, including masterminding the USS Cole bombing. Nashiri’s lawyers wanted him to testify about his treatment and torture by the CIA in the secret prisons he was held at, as a way to convince the judge that Nashiri should not be shackled while meeting with his lawyers, because the shackles reminded him of his torture and “re traumatized him.”

Nashiri’s testimony would have been the first by a detainee held in secret CIA prisons.

He is one of three detainees the U.S. has publicly acknowledged waterboarding. However, many of the details surrounding Nashiri’s interrogations remain classified. Journalists covering the trial are prevented from hearing classified information through a “white noise” button. They are separated from the courtroom by several panes of soundproof glass.

A consortium of 10 American news organizations, including the New York Times and the Miami Herald hired a first amendment lawyer, David Shulz, to go to Guantanamo and argue that the hearing should not be classified.

Schulz told the judge, Col James Pohl, that classified information was not enough of a reason to close a hearing to the public and that “it should meet a higher standard for closure, there needs to be a substantial probability of threat to national security.” Shultz also argued that much of the information was already in the public domain.

But instead of ruling on the issue, Judge Pohl said that Nashiri would be allowed to meet with his lawyers without shackles, bypassing the need for a hearing about his experiences, but postponing an issue that will surely arise again.

Mark Seibel, chief of correspondent for McClatchy, one of the news organizations that hired Schulz, said the media consortium would continue to raise the issue in the future “it’s important for us to assert that the first amendment applies to Guantanamo just like it does to any other judicial proceeding in the U.S. justice system ... Simply by putting a court in an inconvenient place does not allow the exclusion of the news media or the public from the proceedings.”

Nashiri could face the death penalty if convicted, he has so far cooperated with his lawyers but has indicated his desire to skip court sessions deeming them “not interesting enough” according to his lawyers on Wednesday.

In other military commission news the Department of Defense announced it was going to formally charge Khalid Sheikh Mohammed and four co-conspirators with orchestrating the 9/11 attacks. The arraignment is scheduled to take place in Guantanamo on May 5.

Journalists covered Wednesday’s hearings from Guantanamo and from a remote viewing location via closed circuit television at Ft Meade, near Washington.

(Muna Shikaki is a correspondent for Al Arabiya news channel in Washington, DC, and can be followed on twitter @munashik. She can be reached by email at: [e-mail])