Left unclear is whether retired Army Gen. David Petraeus, who replaced Panetta at the agency, or his successor John Brennan endorsed the proposed secret structure discussed in the no-name motion at the Guantánamo court.
At the CIA, spokesman Dean Boyd said, since the case is in litigation, the agency would not comment on when the agency discovered it had the photos. Also, he referred to the Pentagon what, if anything the photos portray Nashiri doing.
The revelation comes in the heavily redacted 55-page transcript in which Nashiris defense lawyer, Kammen, lodges a protest that the accused was excluded from the pretrial hearing.
The secret motion for a secret finding somehow addresses a prosecution system of, as Kammen calls it, sanitizing CIA evidence. It borrows from federal classified protection procedures by creating summaries of CIA information, not the actual CIA documents about what it learned and how it treated Nashiri between his capture in Dubai in November 2002 and his surfacing at Guantánamo in September 2006.
Under the system, the judge, Army Col. James L. Pohl, gets to read whatever the CIA furnished to the prosecutors and gets to decide whether the summaries are sufficiently representative.
Kammen, a veteran death-penalty defender, calls the information particularly crucial in the mitigation phase of the trial, meaning he might need it to argue against the death-penalty if the jury of military officers convicts Nashiri. He argued in the secret session that the summaries are insufficient.
Kammen also complained that there was no way to verify the accuracy of the prosecution's summary of how Nashiri had been treated because under the rules of the commission, Nashiri is not allowed to read the classified summaries.
Without letting the man held by the CIA read what they say happened to him, Nashiri can't say "how false they are, how incomplete they are, how misleading they are, how sanitizing they are." Baltes replied that Kammen can ask Nashiri his recollections and compare them to the summaries.