GUANTANAMO BAY NAVAL BASE, Cuba — A defense attorney for a waterboarded prisoner urged an Army judge on Wednesday to not take back a bold order to disclose details of the CIA’s black site program, likening the judge to Watergate’s Judge John Sircia, whose bravery toppled the presidency of Richard M. Nixon.
Prosecutors argue that the judge, Army Col. James L. Pohl, got it wrong when he ordered the U.S. government to give defense attorneys, not the public, details of prisoner Abd al-Rahim al-Nashiri’s four-year odyssey through the CIA’s secret prison network. They’ve invoked national security and want him to rescind the order.
“It’s a brave and courageous order. That’s why they want you to walk it back,” attorney Richard Kammen told Pohl, the judge in the death-penalty trial of al-Nashiri, a Saudi accused of orchestrating al-Qaida’s 2000 bombing of the USS Cole warship off Yemen.
“The cynical part of me thinks it’s going to get you fired,” he added.
For the prosecution, Army Brig. Gen. Mark Martins argued that no individual has “a monopoly on patriotism,” and offered a counter-proposal. The government would tweak a case protective order, he said, to let defense attorneys for the first time share some limited classified information with al-Nashiri as an alternative to giving his lawyers a deep dive into the details of the spy agency’s most closely guarded secrets.
The issue is a pivotal one for the war court. Pohl is also the judge making discovery decisions ahead of the tribunal of accused 9/11 mastermind Khalid Sheikh Mohammed and four alleged accomplices, also facing the prospect of military execution if convicted. And their lawyers, like Kammen, argue the CIA tortured those suspects and want the details in order to mount a defense, discredit prosecution evidence.
At issue is Pohl’s April order to the government to give al-Nashiri’s lawyers in classified fashion explicit details of the now-defunct interrogation and detention program — the names of agents, medical staff and guards who worked in the black sites, as well as a chronology of where he was held and cables that discussed his interrogations. Besides being waterboarded, the 49-year-old Saudi was subjected to a mock execution and interrogated with a power drill and handgun.
Kammen said that one account of al-Nashiri’s waterboarding described observers as so upset by it they vomited. Pohl’s order to name names could help the defense find those people, he argued..
Separately Wednesday, lawyers on both sides of the USS Cole bombing case argued over the Senate Intelligence Committee’s “Torture Report.”
Defense lawyers asked Pohl to get them a copy of the entire document detailing not only al-Nashiri’s treatment in CIA custody but describing other captives interrogations that might implicate their client.
Prosecutors replied that the judge, whose job was created by Congress, has no authority to order the Senate to hand over a copy of the report. The prosecutors also said that they haven’t obtained or read the Senate Select Committee on Intelligence report on the CIA’s black site program to decide what portions defense lawyers might be entitled see.
An executive summary — 480 pages — of the Senate report is undergoing a declassification review, at the request of the White House. But defense lawyers argue, separately from the judge’s order up for reconsideration, that they want all 6,600-plus pages of it — notably analysis — to evaluate what their client told them about his torture in U.S. custody between his capture in Dubai in 2002 and arrival at Guantanamo for trial in September 2006.
In a letter to President Barack Obama on April 7, Sen. Dianne Feinstein, D-Calif., described the report as “the most comprehensive accounting of the CIA’s Detention and Interrogation Program, and I believe it should be viewed within the U.S. Government as the authoritative report on the CIA’s actions.”
But the judge questioned aloud in court whether the report constituted evidence that could be admissible at trial, versus analysis. Lead prosecutor Navy Cmdr. Andrea Lockhart said neither the prosecution nor the defense lawyers could know the answer to that because neither side had read it and her team had not evaluated whether it was material or relevant at trial.
Lockhart left unclear, in direct reply to the judge’s question, whether case prosecutors had actually asked for a copy of the report. She said only that the prosecution expected the limited executive summary to have undergone a declassification review sometime this summer.
For al-Nashiri, Army Maj. Tom Hurley noted that there is vigorous debate inside government over what portion of the Senate summary might be released. “The cruel part of the cruel joke that is the government’s response is that it suggests this belief that the United States government itself is going to get it together and disclose some portion of this report.”
Al-Nashiri is accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide bombing of the U.S. Navy warship at the port of Aden, Yemen. Seventeen American sailors died and dozens more were injured after two men motored an explosives-packed skiff alongside the Cole and blew themselves up.
Wednesday’s three-day hearing began with an unusual closed session of the pretrial proceedings that got underway without public explanation and “lasted an hour and a half, roughly,” according to an al-Nashiri defense lawyer, Navy Cmdr. Brian Mizer.
Mizer said he was forbidden to describe what went on in the session, which was held under a provision of the post 9/11 war court that allows lawyers to huddle with the judge to figure out what portion of the court proceedings can be conducted in secret.
In the past, the judge first held an open session to explain in advance the nature of the proceedings with prosecutors and defense attorneys that would exclude the public and al-Nashiri.
This time, the attorneys, staff and trial judiciary arrived on a flight from the Washington, D.C., area Tuesday afternoon and started the hearing at around 9 a.m. without explanation.
According to the judge’s docket, a major topic expected this week was a bid by the prosecution to get the judge to reverse himself on his April 14 discovery ruling. Once the sides opened the court, Wednesday morning, neither the judge nor the lawyers mentioned the so-called motion to reconsider and hopscotched around it in discussion other motions on this week’s docket.
It is not known, even if the judge does not reverse himself, whether the CIA will comply.
The session began a day after the chief prosecutor, Army Brig. Gen. Mark Martins, issued a statement that calculated the amount of closed sessions in the case at “5 percent of the proceedings.” In the past, the court has weeks after the closed session released a partial transcript of the closed hearings that black out secret information but give the public a general sense of what was discussed.