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Justice Dept. balks at judge’s order to send ‘Torture Report’ to court for safekeeping

A courtroom artist's sketch of Abd al Rahim al Nashiri, during his military commissions arraignment Nov. 9, 2011 in Guantanamo Bay, Cuba

JANET HAMLIN/TNS

By CAROL ROSENBERG | Miami Herald (Tribune News Service) | Published: January 14, 2017

The Obama administration is resisting a federal judge’s order for a copy of the Senate “Torture Report,” saying the damning Senate study of the CIA’s secret post-9/11 prison network is not the government’s to give the court.

Judge Royce Lamberth on Dec. 28 ordered the Justice Department to deliver a copy of the the Study to his court for safekeeping. He said it would be preserved at a top-secret storage facility maintained by the U.S. District Court in Washington.

But Justice Department attorneys wrote in a filing Friday that delivery of a government copy of the Senate Select on Intelligence Committee Study of Central Intelligence Agency’s Detention and Interrogation Program would “unduly interfere … with the larger oversight relationship between the Senate committee and the CIA.”

The filing also argues that there’s no risk of the Senate Intelligence Committee report disappearing forever because President Barack Obama recently added his classified copy to his presidential archives. Obama declined to use his authority to declassify it, so the earliest it could become public is 2028.

American lawyers for Abd al Rahim al Nashiri, who is being held at the U.S. prison at Guantanamo Bay Naval Base in Cuba, turned to the civilian federal court to preserve the report after a military tribunal judge wouldn’t do it. The Saudi man is accused of orchestrating al-Qaida’s bombing of the USS Cole in 2000, which killed 17 U.S. sailors. His lawyers want to use the report of his waterboarding and other abuse in CIA custody to spare him from execution.

An executive summary of the Senate report has been mostly declassified, offering insights into the CIA’s program. But the full study is believed to include details of detainees kept naked, deprived of food and sleep, rectally abused, waterboarded and shackled in stress positions. In some instances, the summary says, the mistreatment was not approved by CIA headquarters. In other instances, field agents opposed the use of some of the “enhanced interrogation techniques” and were overruled by their headquarters.

At issue is an effort by the Senate Intelligence Committee chairman Richard Burr, R-N.C., to recall all copies of the report from the Obama administration — including the FBI, Pentagon and the CIA.

The committee created it under the leadership of Democrat Sen. Dianne Feinstein, who distributed a few copies and said “the full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to make sure that this experience is never repeated.”

The Justice Department challenged Lamberth’s authority to keep a copy. It noted that an appellate court has already ruled the report is as a legislative work product, not subject to release under the Freedom of Information Act. The American Civil Liberties Union sued for a government copy. It is now asking the U.S. Supreme Court to decide.

The Justice Department lawyers suggested that Lambert should do something similar to what the judge did in Guantanamo’s five-man 9/11 conspiracy case. Army Col. James L. Pohl ordered the Defense Department to preserve a copy, but did not require it to give it to him.

The Justice Department filing also said the lawyers might appeal if Lamberth does not relent.

©2017 Miami Herald
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