The military judge in the USS Cole bombing case has ordered the CIA to give defense lawyers details — names, dates and places — of its secret overseas detention and interrogation of the man accused of planning the bombing, two people who have read the still-secret order said Thursday.
Army Col. James L. Pohl issued the five-page order Monday. It was sealed as document 120C on the war court website Thursday morning and, according to those who have read it, orders the agency to provide a chronology of the overseas odyssey of Abd al Rahim al Nashiri, 49, from his capture in Dubai in 2002 to his arrival at Guantánamo four years later.
The order sets the stage for a showdown between the CIA and a military judge, if the agency refuses to turn over the information to the prosecution for the defense teams. The order comes while the CIA fights a bitter, public battle with the Senate on its black site torture investigation.
The judge’s order instructs prosecutors to provide nine categories of closely guarded classified CIA information to the lawyers — including the names of agents, interrogators and medical personnel who worked at the so-called black sites. The order covers “locations, personnel and communications,” interrogation notes and cables between the black sites and headquarters that sought and approved so-called enhanced interrogation techniques, the two sources said.
It does not, however, order the government to turn over Office of Legal Counsel memos that both blessed and defined the so-called Torture Program that sent CIA captives to secret interrogations across the world after the Sept. 11, 2001 attacks — out of reach of International Committee of the Red Cross delegates.
“It’s a nuclear bomb that may shut down the case,” said one person who read the order and is not a part of the Cole case.
It covers so many of the agency’s closely guarded secrets that the source predicted “the prosecution would probably take an interlocutory appeal,” meaning rather than release the information Pentagon prosecutors will ask a military commissions appeals court to overrule Pohl.
It was not known whether the CIA would assert a national security privilege. “As a general matter, CIA does not comment on ongoing court litigation,” said agency spokesman Dean Boyd.
Different remedies sometimes suggested by defense attorneys in pretrial hearings range from abating the proceedings until the government complies to making life in prison, rather than military execution, the maximum possible penalty.
The chief prosecutor, Army Brig. Gen. Mark Martins, would not comment on whether he would appeal.
“We are studying that order,” he said, adding that the prosecution would comply with both “the rule of law” and “our discovery obligation.”
Nashiri pretrial hearings are still scheduled for next week, he said.
Defense lawyers at the five-man Sept. 11 war crimes trial said Thursday that, upon learning of Pohl’s order in the USS Cole case, they styled a motion seeking access to the same CIA information about their clients.
After the Miami Herald disclosed the order Thursday morning, Nashiri’s civilian lawyer, Rick Kammen, cast it as material that “the prosecution has publicly resisted producing.”
“The prosecution’s argument that the defense is precluded from checking the government’s work is frivolous. One of the defense functions is to check the government’s story,” he said. “The biggest cause of reversals in capital cases is due to prosecutorial withholding of exculpatory material including material relevant to punishment.”
He added: “We also note that the CIA has lied to at least three federal courts, the 9/11 Commission and, according to the newspapers, Congress. This demonstrated history of lying clearly obligates us to a full investigation.”
Even if the prosecution does secure the information from the CIA and releases it to Nashiri’s lawyers, that does not necessarily mean that the public will get to know the details.
The program is still classified, and Pohl ordered the material produced as discovery — for pretrial preparation in the case of Nashiri, the Saudi captive who the U.S. has called the mastermind of al-Qaida’s suicide bombing.
Two men sailed a bomb-laden skiff alongside the Cole on Oct. 12, 2000, and blew themselves up, crippling the warship and killing 17 U.S. sailors.
The development comes two weeks 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 Nashiri before his death-penalty trial. But the judge’s order appears to go further to a level of detail not provided in the executive summary, findings and recommendations that might be made public, if President Barack Obama agrees.
It also follows the recent Pentagon release of unclassified portions of a secret Feb. 22 Cole case hearing among lawyers with security clearances that allow them to know certain aspects of the still-secret CIA Rendition, Detention and Interrogation (RDI) program.
One person who read Pohl’s ruling this week said the order “largely ordered a huge amount of RDI material produced to the defense.” Pohl apparently at one point specifies that information must be unredacted, not blacked out.
At that hearing, the lead prosecutor preparing for Nashiri’s Dec. 4 death-penalty tribunal, Navy Cmdr. Andrea Lockhart, argued that the government had provided the defense with anything “relevant” to trial preparation.
The defense doesn’t have the authority to “double-check the government’s work,” Lockhart told the judge, “and they certainly don’t have the right to do their own independent investigation” of what happened to Nashiri.
Pohl apparently concluded otherwise.
Defense lawyers want to independently reconstruct what happened to Nashiri in secret confinement to challenge the integrity of certain evidence and to argue that his mistreatment disqualifies a death penalty sentence.
The CIA waterboarded him, and an internal abuse investigation showed its agents interrogated Nashiri while he was nude and that they threatened him with a revving power drill, handgun and threats to sexually assault his mother.
Chief prosecutor 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.
Navy Cmdr. Brian Mizer, one of Nashiri‘s lawyers, told the Miami Herald recently 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.
His lawyers 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.