By Jane Sutton
GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters)- - A judge in the Guantanamo war crimes tribunal sidestepped the question of whether the public could hear an alleged Qaeda chieftain's testimony about his mistreatment in CIA custody by issuing a ruling on Wednesday that made the testimony unnecessary.
The action came in a pretrial hearing for Saudi prisoner Abd al Rahim al Nashiri, who is accused of masterminding the suicide-bomb attack that killed 17 U.S. sailors aboard the USS Cole off the coast of Yemen in 2000.
Defense lawyers wanted to put Nashiri on the stand to describe how CIA interrogators shackled him and subjected him to mock executions and the simulated drowning technique known as waterboarding, actions the CIA has acknowledged despite maintaining its interrogation methods are a national secret.
The lawyers argued that Guantanamo jailers should stop shackling Nashiri to the floor when he meets with them because the leg chains reminded him of the trauma he suffered in the secret CIA prisons and impaired his ability to help prepare a defense on charges that carry the death penalty.
Prosecutors had proposed meeting privately with the judge to review Nashiri's potential testimony and decide whether it could be heard in open court.
"The court will conduct a closed session to determine whether to conduct a closed session?" asked one of Nashiri's lawyers, Navy Lieutenant Commander Stephen Reyes.
Rather than decide whether Nashiri's testimony should be given in secret or in open court at the Guantanamo Bay U.S. naval base, the judge ordered that the shackles come off during attorney-client meetings.
"If you have a non-shackle option, doesn't that moot your entire motion on retraumatization?" asked the judge, Army Colonel James Pohl.
He declared that the issue was moot, although it could still arise when Nashiri goes to trial, which would be in November at the earliest. He would be the first captive to undergo a fully contested trial in the Guantanamo tribunals since the Obama administration revamped them in 2009, and the first to face the death penalty.
The Pentagon also referred charges for trial last week against Khalid Sheikh Mohammed and four other prisoners charged with plotting the September 11 hijacked plane attacks on the United States. That is also a death penalty case and Pohl set their arraignment for May 5.
Like Nashiri, they were held in secret CIA prisons before being sent to the Guantanamo detention camp in 2006 and their treatment is likely to be an issue. The CIA has acknowledged it repeatedly waterboarded Mohammed, who is usually referred to in court documents by the initials KSM.
'INFORMATION THE WHOLE WORLD KNOWS'
Before ruling on the shackling issue on Wednesday, Pohl heard from an attorney hired by 10 major news organizations, including Reuters, who argued that journalists and the public should be allowed to hear Nashiri's testimony about his CIA treatment because some details of his treatment were already known publicly.
In addition to the waterboarding, the CIA acknowledged menacing him with a handgun and a power drill while he was blindfolded to scare him into talking. Defense attorneys have said he was also stripped naked and chained to a wall as part of a sleep-deprivation treatment.
David Schulz, the news organizations' attorney, said there was no reason to protect "information that the whole world knows or can find in two seconds on the Internet."
A small group of journalists attend the tribunal hearings at the Guantanamo Bay naval base in Cuba, while journalists and members of the public can watched via closed-circuit television at U.S. military bases in Maryland and Virginia.
"It's an important recognition that the public has a stake in the openness of these proceedings," Schulz said.
Not only does the U.S. Constitution require open trials, he said, but judges have consistently recognized that the public must be able to view the proceedings if they are to accept the verdicts as fair.
The Guantanamo court has adequate safeguards to prevent the disclosure of national secrets, he argued, because the audio feed into the witness gallery at the Guantanamo court and the closed-circuit TV feed are on a 40-second delay that allows a security officer to block the sound if classified information is mentioned.
(Editing by Kevin Gray and Peter Cooney)