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Today, a terror suspect appears in a military courtroom at Guantanamo Bay, Cuba. He's accused of masterminding the bombing of the USS Cole, the Navy ship struck while in Yemen in 2000, killing 17 Americans. U.S. officials admit that Abd al-Rahim al-Nashiri was waterboarded during interrogation.
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He was held at by the CIA at secret locations for years. Now he will talk about what happened in CIA custody. What he says could make for riveting listening, were it not for one detail. The government wants his testimony heard in secret.
INSKEEP: NPR's Dina Temple-Raston reports on the legal argument being made today to make the trial public.
DINA TEMPLE-RASTON, BYLINE: Watching a military commissions trial from the viewing gallery can be a little disconcerting. What you see in the courtroom and what you hear in the gallery don't quite match. All the sound in the viewing room is on a delay - a 40-second delay, to be exact.
MELINA MILAZZO: And so there's all sorts of sort of surreal moments.
TEMPLE-RASTON: Melina Milazzo is with Human Rights First.
MILAZZO: Where reality in the courtroom and reality of what you're hearing aren't in real time.
TEMPLE-RASTON: So, for example, by the time the gallery hears the judge introduced and the words all rise, the judge has already been in the courtroom for 40 seconds. The delay gives intelligence officers time to press a button that covers any classified information piped into the gallery with white noise. But the Pentagon says that when it comes to the testimony of al-Nashiri, that white noise won't be enough, and that's why they want the hearing held in secret. General Mark Martins is the chief prosecutor at the military commissions.
GENERAL MARK MARTINS: No one has said that our nation's secrets are an open book. Troop movements, intelligence about particular groups - there really are secrets that have to be protected.
TEMPLE-RASTON: Not in this case, say critics. They argue that al-Nashiri will be testifying to information that was made public by the CIA itself.
MILAZZO: We know that he was held in CIA black sites in Poland and Thailand. We know that he was tortured, including being waterboarded.
TEMPLE-RASTON: Again, Melina Milazzo.
MILAZZO: So while we know about this information, this will be the first time that a detainee in U.S. custody would be able to speak about it in his firsthand experience.
TEMPLE-RASTON: Critics of the commission say that's exactly what prosecutors don't want: a firsthand account of what happened, possibly with more detail than has been public before - for example, what CIA interrogations actually entailed. General Martins says that isn't the case. He said that the military commissions won't close a session just because something might be embarrassing or unlawful. There has to be a legitimate national security concern.
MARTINS: I think you can imagine situations in which there is still information that needs to be protected, even if a law was broken. The reason for holding it back cannot be that a law was broken.
SAM RASCOFF: I'm Sam Rascoff. I teach the law of national security at New York University.
TEMPLE-RASTON: Rascoff says there's a broader principle at stake: the openness of the commission proceedings themselves. These are the courts that, just weeks from now, will be trying the men accused of plotting the 9-11 attacks. If al-Nashiri's testimony is held in secret, it suggests the commission process isn't open at all, and that's in sharp contrast with federal criminal courts.
RASCOFF: We expect federal criminal trials to be open proceedings. You and I could walk into a courtroom tomorrow in New York or anywhere across the country and expect to take a seat and watch a criminal trial unfold, watch the jurors, watch the prosecutors, watch the defense lawyers and the witnesses and so forth. Quite different is the circumstance in the military commission, and the defense is trying to surface those differences prominently and early on.
TEMPLE-RASTON: The other problem, Rascoff says, is that the officials who are deciding whether to close a hearing at Guantanamo or not aren't independent, like a federal judge would be.
RASCOFF: It's ultimately the government, the same people who have a percentage in keeping something secret, who end up making the decision whether to do so.
TEMPLE-RASTON: NPR is part of a group of news organizations that filed an objection to the Pentagon's effort to close the al-Nashiri proceedings. The group sent an attorney to Guantanamo to argue for an open hearing. Dina Temple-Raston, NPR News.
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