WAR COURT

Will CIA comply with Guantánamo judge’s order? Agency won’t say

 
 
The flag as seen from the reporter's filing center as it flies over a war crimes courtroom at Camp Justice in this photo reviewed by the U.S. Department of Defense on October 17, 2012. The military forbids photography of the actual bunker-style eavesdropping proof courtroom where the security trials are held but permits images from the area, such as this one.
The flag as seen from the reporter's filing center as it flies over a war crimes courtroom at Camp Justice in this photo reviewed by the U.S. Department of Defense on October 17, 2012. The military forbids photography of the actual bunker-style eavesdropping proof courtroom where the security trials are held but permits images from the area, such as this one.
MICHELLE SHEPHARD / TORONTO STAR

About Abd al Rahim al Nashiri

Born: Jan. 5, 1965 in Mecca, Saudi Arabia.

Captured: October 2002, United Arab Emirates.

Arrived Guantánamo: September 2006, after waterboarding in secret CIA prison.

Profession: Told a 2007 military review that he was a merchant in Mecca who by 19 was a millionaire. CIA profile released by the White House in 2006 said he was al-Qaida operations chief in the Arabian Peninsula at time of his capture.

Paramilitary background: CIA profile said he fought in Chechnya and Tajikistan and trained at the Khaldan camp in Afghanistan in 1992.

ABOUT THE USS COLE

The 8,300-ton warship is based in Norfolk, Va. It was commissioned, a formal ceremony, at Port Everglades in 1996.

It was on a refueling stop in October 2000 when two al Qaida suicide bombers drove a bomb-laden boat into the side, killing themselves and ultimately claiming the lives of 17 Americans. They were:

Hull Maintenance Technician 2nd Class Kenneth Eugene Clodfelter, 21, of Mechanicsville, Va.

Electronics Technician Chief Petty Officer Richard Costelow, 35, of Morrisville, Pa.

Mess Management Specialist Seaman Lakeina Monique Francis, 19, of Woodleaf, N.C.

Information Systems Technician Timothy Lee Gauna, 21, of Rice, Texas

Signalman Seaman Cherone Louis Gunn, 22, of Rex, Ga.

Seaman James Rodrick McDaniels, 19, of Norfolk, Va.

Engineman 2nd Class Marc Ian Nieto, 24, of Fond du Lac, Wis.

Electronics Warfare Technician 2nd Class Ronald Scott Owens, 24, of Vero Beach.

Seaman Lakiba Nicole Palmer, 22, of San Diego.

Engineman Fireman Joshua Langdon Parlett, 19, of Churchville, Md.

Fireman Patrick Howard Roy, 19, of Keedysville, Md.

Electronics Warfare Technician 1st Class Kevin Shawn Rux, 30, of Portland, N.D.

Mess Management Specialist 3rd Class Ronchester Manangan Santiago, 22, of Kingsville, Texas.

Operations Specialist 2nd Class Timothy Lamont Saunders, 32, of Ringgold, Va.

Fireman Gary Graham Swenchonis Jr., 26, of Rockport, Texas.

Ensign Andrew Triplett, 31, of Macon, Miss.

Seaman Craig Bryan Wibberley, 19, of Williamsport, Md.

Source: Defense Department, Miami Herald records


crosenberg@MiamiHerald.com

The CIA declined to comment again Tuesday on whether the agency would comply with a military judge’s week-old order to provide USS Cole case defense lawyers with some of the deepest, darkest secrets of its now-defunct overseas prison program.

“Our position on whether to comment to you has not changed,” said spokesman Dean Boyd. “As a general matter, the Agency doesn’t comment on matters of pending litigation.”

The question of compliance loomed over the first day of pretrial hearings in the death-penalty case of one-time waterboarded CIA captive Abd al Rahim al Nashiri, 49, as his attorneys argued unsuccessfully to get the judge who issued the sweeping discovery order to step down from the case.

The judge, Army Col. James L. Pohl, was recalled from retirement in 2010 to serve as chief of Guantánamo’s war court judiciary. The Army has to renew his contract each year. He rejected an argument that he has conflicting loyalties between the job and the law in the first day of a six-day hearing scheduled to consider 60 pretrial motions that set the stage for the war crimes trial later this year.

Nashiri, a self-described former millionaire from Mecca, Saudi Arabia, spent the hearing swiveling in the defendant’s chair while family of some of the 17 sailors who were killed in al-Qaida’s suicide attack watched through soundproof glass. He is accused of orchestrating the Oct. 12, 2000, suicide bombing off Aden, Yemen. The prosecution seeks his military execution if he’s convicted.

That’s why, Pohl wrote in a five-page judicial order released Tuesday, Nashiri’s civilian and military attorneys are entitled to sweeping discovery about the CIA “black sites” where agents held Nashiri for four years. During that time, Nashiri was waterboarded, interrogated while nude, threatened at the point of a power drill and handgun, and told that his mother would be sexually assaulted.

The public won’t get the details because the information is classified. But Pohl ordered the agency to tell Nashiri’s lawyers the names of countries and places where their client was held in secret detention, chronologically; interrogation plans, including suggested, now outlawed, techniques that the CIA refused to use; and names of a wide range of people who worked at the secret prisons — from doctors and mental health workers to dentists and guards.

Pohl wrote that he “views the Prosecution’s obligation to provide discovery broadly and liberally, especially in light of the capital referral of the charges.” He also said Nashiri’s lawyers have an “ethical duty to conduct pretrial investigation in order to develop the full range of exculpatory, mitigation and extenuation evidence.”

The Miami Herald reported leaked details of the order last week. It is more sweeping in scope than first reported, and includes an order to provide details of the interrogation of other Guantánamo prisoners — notably former CIA captive Walid bin Attash, 35, a Yemeni awaiting his own death-penalty trial as an alleged accomplice in the Sept. 11, 2001, terror attacks.

Bin Attash is listed as an unindicted co-conspirator in the USS Cole case. His 9/11 defense lawyers argue that like Nashiri, bin Attash was tortured, and they want details of his CIA custody. But Pohl has yet to rule on the discovery issue in that case.

Boyd referred the question of compliance to the Defense Department, where the prosecutor has the option of asking Pohl to reconsider the order — or appeal it to a military commissions review panel.

“I’m not a spokesman for the Central Intelligence Agency,” said Army Lt. Col. Todd Breasseale, a Pentagon spokesman. “What I can tell you is that matters that are ordered by the judge are rightly discussed in court until they are fully litigated — and not by agencies of the U.S. government in the press.”

While the five-defendant Sept. 11 prosecution is presently stalled on whether a secret FBI criminal investigation has presented defense lawyers with a conflict of interest, the single-defendant Nashiri pretrial hearings have been systematically edging closer to trial.

That’s why the USS Cole case may set the stage for how much material the agency will provide to the war court created by President George W. Bush and then reformed by President Barack Obama and Congress.

Nashiri defense attorney Rick Kammen, however, put Judge Pohl on notice Tuesday afternoon that he would file an emergency motion for an explanation of the FBI probe. A filing Monday night by the Sept. 11 Special Trial prosecutor, Fernando Campoamor-Sánchez, suggested that an ongoing FBI criminal investigation might be broader than simply targeting someone in the 9/11 case, Kammen said, and defense lawyers want an explanation.

Read more Guantánamo stories from the Miami Herald

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