By Jane Sutton
WASHINGTON (Reuters) - Several U.S. news organizations have asked a judge in the Guantanamo war crimes tribunals to keep the court open to the media this week if an alleged al Qaeda chieftain is allowed to testify about his mistreatment in secret CIA prisons.
Defense lawyers have said the court would almost certainly meet in a secret session if the judge permits testimony from Abd al Rahim al Nashiri, a Saudi prisoner accused of orchestrating the attack that killed 17 U.S. sailors aboard the USS Cole off the coast of Yemen in 2000.
Three days of pretrial motions are scheduled to begin on Wednesday in the death penalty case at the Guantanamo Bay U.S. naval base in Cuba.
Nashiri would be the first former CIA captive to give a first-hand account in court about interrogation methods that the government considers to be secret.
Defense lawyers want to put Nashiri's treatment in CIA prisons on the record. They hope to do that by arguing that jailors should stop shackling him to the floor when he meets with them, obtaining his testimony that the leg chain reminds him of the trauma he suffered in CIA prisons and impairs his ability to help prepare a defense.
The Miami Herald and its parent company, The McClatchy Co., initiated a motion asking the judge, Army Colonel James Pohl, to keep the hearing open. Several news organizations, including Reuters, joined the request.
The news groups argue that journalists should be able to witness Nashiri's testimony because some details of his treatment are already known publicly and because the Pentagon has adequate safeguards to prevent national secrets from being disclosed.
Journalists normally watch the hearings from behind a soundproof glass wall in the courtroom, or on a closed-circuit feed. In both cases, the audio feed is delayed by 40 seconds to give the court security officer time to block the sound with white noise if classified information is mentioned.
If the judge closes the court, journalists would not be able to watch or hear the proceedings.
The law underpinning the tribunals expressly mandates that the proceedings must be open to the media and public, except in certain narrowly limited circumstances, David A. Schulz, an attorney representing the news organizations, wrote in the motion.
He said a blanket closure of the court would not be in the public interest because matters to be discussed at the hearing "shed considerable light on how the United States government treats 'high-value detainees' such as Mr. al Nashiri, and how such treatment affects both the fairness and the appearance of fairness of these proceedings."
The judge has not indicated how he will handle the request, but "I can't imagine him not hearing it," said a Pentagon spokesman, Lieutenant Colonel Todd Breasseale.
Nashiri is accused of masterminding the attack in which two suicide bombers rammed an explosives-laden boat into the side of the Cole during a refueling stop in the Yemeni port of Aden.
He was captured in Dubai in 2002 and held in secret CIA prisons, reportedly in Thailand, Afghanistan and Poland, before being sent to the Guantanamo detention camp in 2006.
The CIA has acknowledged that Nashiri was subjected to the simulated drowning technique known as water-boarding, and that agents racked a semiautomatic handgun near his head and revved up a power drill while he was blindfolded to frighten him in to talking.
Defense attorneys have said he was also stripped naked and chained to a wall as part of a sleep-deprivation treatment.
"I have no reason to think the prosecution will in any way agree to have Mr. Nashiri's testimony public. My guess is that they will try and prevent it from happening altogether," defense attorney Rick Kammen told Reuters.
The charges against Nashiri include murder, attempted murder and conspiring with al Qaeda, and he could be the first Guantanamo captive to face the death penalty if convicted.
Defense lawyers have said the United States has lost its moral authority to execute him because it tortured him, and that his treatment at CIA hands "is just going to infect everything in this case."
Prosecutors have not commented publicly about whether they want the hearing closed. They have filed what is titled "Motion for Hearing to Identify and Minimize Amount of Closure of Proceedings" in the shackling matter, however it remained sealed on Monday.
Other media groups joining the request were Fox News Network, National Public Radio, The New York Times, The New Yorker magazine, the Tribune Company, The Wall Street Journal and the Washington Post.
(Editing by Kevin Gray and Philip Barbara)