Just-released transcripts of a secret session at the Guantánamo war court show defense lawyers want a list of the countries where the CIA secretly jailed the alleged USS Cole bomber, and the names of people who worked at the agency's black sites. But the prosecution won't provide them.
The tug-of-war over transparency emerged days after the Senate voted to declassify a portion of an investigation of the so-called CIA Torture Program that could contain some of the answers sought by lawyers for Saudi Abd al Rahim al Nashiri before his death-penalty trial.
Defense lawyers have security clearances that allow them to know certain aspects of the still-secret CIA Rendition, Detention and Interrogation program. But they aren't entitled to a list of nations and names as they prepare for Nashiri's Dec. 4 death penalty tribunal, case prosecutor Navy Cmdr Andrea Lockhart said in a transcript of the closed Feb. 22 Guantánamo hearing posted on the Pentagon's war court website Friday evening.
Lockhart told the judge, Army Col. James L. Pohl, the defense does not have the right to “double-check the government’s work, and they certainly don’t have the right to do their own independent investigation” of what happened to Nashiri.
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Defense lawyers argue otherwise. They want to independently reconstruct what happened to Nashiri in secret confinement — between his capture in Dubai in 2002 and transfer to Guantánamo four years later for this trial by military commission — to challenge the integrity of certain evidence and to argue his mistreatment disqualifies a death penalty.
The CIA waterboarded him, and an internal abuse investigation showed its agents also interrogated Nashiri while he was nude; they also threatened him with a revving power drill, handgun and threats to sexually assault his mother.
The chief prosecutor, Army Brig. Gen. Mark Martins, has already noted that the Obama administration revamped the tribunal to prohibit use of involuntary interrogations at trial. In the transcript, Lockhart says all mistreatment of Nashiri is now in the public domain.
The defendant, just like the public, was excluded from two closed hearings in February where the judge and lawyers invoked the classified information the defense is allowed to know in trial preparation.
The Pentagon released the heavily censored transcript six weeks later.
Defense lawyers argue the who, what, where and how are critical to efforts to exclude statements Nashiri made at Guantánamo ostensibly voluntarily in his fourth year of U.S. custody without benefit of an attorney.
“The name of the country or whatever particular location is not relevant for the purposes of what occurred, “ Lockhart argued. Who, what, where and when don’t matter, she said, “at the end of the day when you boil it down, what matters is what happened to the accused.”
Once Nashiri got to Guantánamo, the Justice Department had “clean teams” question him in a less coercive setting, and the military brought him before a panel to question him and confirm his status as an “enemy combatant.”
At the closed hearing Feb. 22, Nashiri’s long-time defense lawyer argued CIA agents so fundamentally dismantled their prisoner’s personality with “enhanced interrogation” program that he told investigators what they wanted to hear.
“The guy that was arrested is dead,” said Rick Kammen, Nashiri’s lawyer since 2008. “They haven’t killed his body but they’ve killed whoever that guy was. Because that’s what this program was designed to do, it was designed to turn people into a state of learned helplessness where they were powerless to say no to government agents.”
Navy Cmdr Brian Mizer, another Nashiri lawyer, told the Miami Herald this week that an investigation of the treatment should determine whether any of Nashiri’s answers to questions at Guantánamo were truly voluntary: “You have to get back to the past to determine whether this is just a dog barking on command.”
A military medical board has diagnosed Nashiri, 49, a self-described former millionnaire merchant from Mecca, as having Post-Traumatic Stress Disorder and a Major Depressive Disorder.
Nashiri, at times described by the Bush administration as the al-Qaida’s chief of Persian Gulf operations, is accused of orchestrating the Oct. 12, 2000 suicide bombing of the USS Cole off Yemen. Two men in a bomb-laden skiff motored up alongside the warship at Aden harbor and blew themselves up, killing 17 U.S. sailors.
Because the now-defunct black site program is still classified, the government contends, even defense lawyers with security clearances, aren’t entitled to the details. If Nashiri happens to remember the places he was kept, he can volunteer the details to his lawyers. But separately defense lawyers cannot discuss with him 14 percent of the so-called discovery in his case because it is classified at a level that Nashiri can’t hear about it, according to prosecutors.
At issue now is how much trial preparation the defense lawyers are allowed to do.
They want to interview officials who worked at the black sites, comb through manifests and read approved Standard Operating Procedures on so-called enhanced interrogation techniques that spelled out how to waterboard Nashiri in secret custody. And they want to know which countries hosted the CIA prisons.
Kammen explained it to the judge this way: “If there is an SOP as to how you are going to do a torture and it wasn’t followed, that would be really important to know.”
To do otherwise, Kammen told the judge, would be unethical.
Prosecutor Lockhart disagreed. “If he was waterboarded, regardless of whether the government said it is right or wrong, is that going change the nature of the ability to present that to the members? It is not. What matters is what was done to him, regardless if somebody said it was OK or not.”
Government censors blacked out names, paragraphs and large portions of the argument from the transcript including several lines after Kammen says, “What we want, Your Honor, are the names of witnesses, witnesses who participated in the torture.”
The for-public portion picks up with: “What could possibly be more mitigating than that? And if a doctor was part of that, if a psychologist was part of that, and they were being paid by the United States, that is mitigating in the context of a case where the United States is now seeking to kill the guy they did it to.”