The Pentagon’s war crimes prosecutor is asking Guantánamo’s chief judge to do an about-face — either to amend or rescind the judge’s own order — in a brief that argues the judge exceeded his authority by ordering the government to turn over to defense lawyers some of the CIA’s deepest dark-site secrets.
The appeal is a key step in the pretrial preparation for Guantánamo’s likely first death-penalty prosecution, the trial of a Saudi prisoner accused of orchestrating al-Qaida’s suicide bombing of the USS Cole warship off Yemen that killed 17 American sailors.
On April 14, the judge, Army Col. James Pohl, ordered the government to give lawyers for accused terrorist, Abd al Rahim al Nashiri, a top-secret chronology of Nashiri’s four-year odyssey through the CIA’s clandestine overseas prison network. The judge ordered the government to provide defense lawyers — who are bound to keep the government’s secrets — the names of agents, medical staff and black-site locations.
Now Army Brig. Gen. Mark Martins’ April 23 appeal, as first reported by The New York Times, asks Pohl to at least wait until the government has finished a classification review of the Senate Intelligence Committee’s so-called Torture Report, which may disclose some of the secrets Nashiri’s lawyers seek.
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But it also argues that the judge got it wrong because when Congress created the war court it gave the prosecution the power to create summaries of the evidence for the judge to approve, rather than divulge the actual raw information defense lawyers want.
Pohl’s ruling suggested that in the instances of the black sites there is no such thing as an adequate substitution for the facts.
One source of tension is the military commissions structure that lets case prosecutors decide what’s relevant to the other side. “It bears emphasizing that the government has already provided the defense with classified information that is actually relevant and material to preparation of the defense,” Martins wrote in his 18-page filing that invoked the expression “national security” 12 times.
Another is the open question whether the spy agency would comply if the general is unable to get the judge to reverse himself. The CIA won’t say whether it will or not. If the agency refuses, one remedy available to the judge is to abate the proceedings until it relinquishes the evidence.
“The government is clearly nervous about protecting the intelligence community’s crown jewels, which we are told must be safeguarded at all costs,” said Eugene R. Fidell, who teaches courses on Guantánamo and military justice at Yale Law School.
At the Heritage Foundation, Cully Stimson, a Navy Reserve judge and former civilian Pentagon detainee affairs chief, reminded that Judge Pohl is similarly deciding pretrial issues in the prosecution of five men accused in the Sept. 11 terror attacks.
“What happens here will be a learning evolution for what can or cannot happen potentially in the 9/11 case,” Stimson said in a telephone interview Friday.
Fidell said that Pohl may be charting a course that Congress didn’t envision when it created the war court: “It certainly would be ironic, and not at all what the drafters of the Military Commissions Act had in mind, if the Nashiri trial or the Sept. 11 trial proved to be a major window into black programs.”
The issue is not whether the accused or the public can learn the CIA’s secrets. They cannot unless the government declassifies the information.
Martins said in a statement April 27 that military prosecutors had for a year advocated some sort of declassification of information in the USS Cole case. He did not elaborate, but his motion for reconsideration cast the judge’s order as exceeding his authority.
Congress designed the court, Martins wrote, with a requirement “that trial judges fashion remedies to preclude situations in which the people, through their government, are compelled to choose between protecting classified information necessary for national security and holding an accused accountable under law for serious violations of the law of war and other offenses triable by military commission.”
In essence, said Stimson, prosecutor Martins is asking the judge to go back and provide “the legal underpinnings” and “applicable case law” to what looked to Stimson as a “bare-bones” five-page discovery order.
“The judge spoke. He has an order,” said Stimson. “The government doesn’t like it. They want him to reconsider.”
From there, Martins can decide whether to appeal to a Pentagon review panel.
Navy Cmdr Brian Mizer, a Nashiri defense lawyer, disagrees with the basis of the appeal.
“To argue that the judge has simply overlooked something is ridiculous,” says Mizer, who has practiced law in both the federal and military system.
He says Nashiri’s defense lawyers need “gritty, granular details” that might help them challenge other trial evidence as tainted by the black sites. They also want leads to the CIA agents who interrogated the Saudi, or analyzed his case.
Prosecutors argue the black site material’s not relevant because only non-coerced statements are acceptable at the Obama war court, suggesting they might use things Nashiri said once he got to Guantánamo in 2006.
The CIA had him for the previous four years and, according to declassified abuse investigations reports, waterboarded him, staged a mock execution and interrogated him with a power drill, handgun and threats to his mother.
In his brief, Martins asks the judge to wait for the administration to release what it can of the Senate Committee’s black site report.
Defense lawyers have asked Pohl to give them the entire document, not just the portion that the White House and CIA eventually declassify.
The Washington Post reported March 31 that the Senate investigation found the CIA “ oversold” Nashiri’s role in the plot and, says Mizer, that dovetails with a possible defense argument that his client was “too stupid to be a mastermind of anything.”