A prisoner accused of directing the deadly bombing of a U.S. warship should be allowed to hear pretrial discussions of secret evidence in the death penalty case against him, defense lawyers in the Guantanamo war crimes tribunal argued on Wednesday.
Trial rules ensure that Saudi defendant Abd al Rahim al Nashiri can be in the courtroom during all of the actual trial and hear all the evidence put before the jury of U.S. military officers who will eventually decide his guilt or innocence.
His lawyers argued that they cannot properly prepare a defense unless Nashiri is also in the courtroom to confer with them during pretrial hearings to discuss legal and evidentiary issues, even if the discussions involve information classified as secret.
Most of that classified material involves Nashiri's treatment in secret CIA prisons before he was sent to the Guantanamo Bay U.S. Naval Base in Cuba, where he is charged with sending suicide bombers to ram a boat full of explosives into the side of the USS Cole off Yemen in 2000.
Seventeen U.S. sailors were killed in the blast that tore a huge hole in the ship.
Prosecutors argued that because the alleged al Qaeda chieftain does not have a U.S. security clearance, he should be removed from the court when necessary to protect national secrets.
They said the tribunal rules governing classified information are the same ones that have been upheld in U.S. federal courts.
Defense lawyers argued that Nashiri already knows what happened to him in the CIA prisons, where the agency has acknowledged interrogators threatened him with a gun and power drill and subjected him to the simulated drowning technique known as waterboarding.
"The evidence at issue is the torture inflicted on Mr. Nashiri," said defense attorney Rick Kammen, who will argue that abusive treatment is a mitigating factor that should spare Nashiri from execution.
Prosecutors have previously objected when Nashiri wanted to skip pretrial sessions, said another of Nashiri's lawyers, Air Force Major Allison Danels.
The judge, Army Colonel James Pohl, did not formally rule on the matter. But he said as the issues arise he would meet privately with the lawyers to determine whether the classified material in question involves something Nashiri has already been exposed to.
If so, he can stay in the courtroom, the judge said.
Nashiri then skipped the afternoon court session on Wednesday, complaining his back was sore and opting to watch via closed-circuit broadcast from a holding cell.
He has been in U.S. custody since 2002 and was first charged in the Guantanamo tribunals in 2008. The pretrial hearings have been plagued with delays caused by everything from hurricanes to technical glitches and changes in U.S. administration.
It's still unclear when his actual trial will start, which has proved frustrating for sailors who survived the attack on the Cole and for the families of those killed.
"It's just asinine that it's taken 13 years," said John Clodfelter, whose sailor son Kenneth Clodfelter was killed in the attack in 2000.
He and Ronald Francis, whose daughter Lakeina Francis was killed in the bombing, are among a small group of spectators who regularly travel to the remote Guantanamo base for Nashiri's hearings.
"They need to stop the stalling tactics and litigate the case," said Francis, who supports the death penalty for Nashiri. "I want to be on the front row, front seat at the execution."