The CIA has uncovered photos it took of an alleged al-Qaida bomber before the agency brought the waterboarded captive to Guantánamo in 2006, according to a partial transcript of a secret hearing in the USS Cole death-penalty case.
Prosecutor Joanna Baltes made the disclosure in the portion of a June 14 hearing at Guantánamo that government censors are now allowing the public to see.
Just three days before the secret hearing, another case prosecutor, Navy Cmdr Andrea Lockhart, announced in open court that the government had turned over to defense lawyers all evidence the government considered relevant in the case of Abd al Rahim al Nashiri, 48.
The Saudi captive is accused of organizing al-Qaidas 2000 suicide bombing of the warship off Yemens port of Aden that killed 17 U.S. sailors. His trial could start next year.
But, at the hearing, Nashiris attorney argued that the defense is entitled to know more about what the U.S. agents did to the captive between 2002 and 2006 beyond waterboarding, which the public already has learned about through unclassified abuse investigations. What attorney Rick Kammen asked for specifically, however, is blacked out under nearly 20 lines of hearing transcript.
At issue in the case is a classified prosecution motion that asks the case judge to adopt a secret finding that will govern some sort of non-transparent aspect of both the USS Cole and 9/11 death-penalty prosecutions.
The request is so sensitive that the Pentagon war court couldnt conjure up a name for the legal filing beyond CLASSIFIED.
But the transcript makes clear the government is seeking to shield for national security reasons aspects of the CIAs black site program in which the U.S. government hid CIA captives from both the International Red Cross and refused them lawyers during up to four years in the agencys secret overseas prison network.
President Barack Obama ordered the program shut down when he took office. But by then Nashiri was already waterboarded by agents, interrogated with a revving drill and racked pistol to his head and delivered to the U.S. Navy base in Cuba for prosecution in the U.S. Navy warship bombing case.
What makes the photos so potentially intriguing is that the CIA had at some point videotaped its use of Enhanced Interrogation Techniques on some captives, then lied to Justice Department lawyers about the tapes existence until after an agency operative destroyed them. This occurred after a judge had issued an order preserving evidence from the black sites.
Baltes said in the closed session that the photos were newly discovered items that will be provided to the defense within probably the next week or so. She said the images are not necessarily specific to any particular location.
Left unclear in the portion of the transcript the public is allowed to read is whether the CIA wouldnt divulge to the prosecution where they took these photos or if they were taken in no specific place, for example aboard secret flights that spirited black-site captives around the world.
To bolster its request for secrecy, Baltes said at the closed hearing, the prosecution included a declaration from former CIA Director Leon Panetta, who left the agency in mid-2011 to become Secretary of Defense, less than six months before Nashiri was formally charged in the death penalty case.