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The Journal Gazette

Friday, June 14, 2013 5:08 pm

Guantanamo court held in secret without accused

By BEN FOXAssociated Press

Prosecutors and defense attorneys emerged Friday from a closed session of the Guantanamo war crimes court so shrouded in secrecy that the defendant was barred from the room and none of the parties could even disclose the subject of the hearing.

There have been closed sessions in the past at Guantanamo to deal with procedural issues but this was on another level. The chief prosecutor, Army Brig. Gen. Mark Martins, said it was the first time they had gone into a closed issue to consider legal issues regarding classified information and the first time that the defendant had been excluded from the proceeding.

Richard Kammen, the lawyer for defendant Abd al-Rahim al-Nashiri, had argued unsuccessfully to let him sit in on the session. Afterward, he said he was even prohibited from discussing what happened with his client.

"There was a secret session, that's all I can say," Kammen told reporters inside a former airplane hangar alongside the high-tech courtroom where the war crimes tribunals are held on the U.S. base in Cuba.

The 48-year-old al-Nashiri, who was born in Saudi Arabia, faces charges that include terrorism and murder for allegedly orchestrating the al-Qaeda attack on the USS Cole in 2000, a bombing in the Yemeni port of Aden that killed 17 sailors and wounded 37.

The defense lawyer was sharply critical of the decision to exclude al-Nashiri, saying it would cast doubt on any eventual verdict and sentence in the death penalty case.

"One of the concerns we've always had about these proceedings, and we've had them since the very beginning of the case, is that ultimately what was going to occur here is a form of secret and expedient justice," Kammen said. "Real justice occurs in the sunshine and not in secret."

The judge was expected to release a redacted transcript of the 78-minute hearing, though it was unlikely to reveal much information.

Kammen predicted there would be more closed hearings as the case progresses fitfully toward trial, but Martins said the government would seek to keep the secrecy to a minimum, taking the unusual step of excluding the public and the defendant from a hearing only when necessary to protect national security. The rules for military commissions, a tribunal for wartime offenses, permit a defendant to be excluded from pretrial hearings to protect classified information but not during the actual trial, which is still many months away.

"Our intent is to present the evidence against the accused in an open, public trial," the general said.

Arguments over whether he could be excluded from the hearing were among the matters before the judge during four days of pretrial hearings that ended Thursday. The defense had argued that al-Nashiri, who was held by the CIA for about four years before he was sent to Guantanamo in September 2006, may already know some of the classified information that the government does not want to disclose.

The judge also heard arguments on defense motions to dismiss the charges of terrorism and conspiracy and on a defense request for an order stipulating that the defendant had a constitutional right to confront witnesses against him, which al-Nashiri's lawyers believe is necessary to prevent the possible use of witnesses who cannot appear before the court in Guantanamo. The judge did not rule on any of those motions.

No trial date has been scheduled but prosecutors have asked for a start date in early 2014. Martins said he expects the trial will be held at the U.S. base in Cuba despite President Barack Obama's renewed effort to close the detention center.

The Guantanamo court will go back in session next week for pretrial motions in the case of five prisoners charged with planning and aiding the Sept. 11, 2001, terrorist attacks.