A defense attorney for a waterboarded prisoner told an Army judge he was as brave as the federal judge who helped topple the presidency of Richard M. Nixon in an impassioned plea on Wednesday to not reverse an order to let lawyers see details of the CIA’s black site program.
Prosecutors argue that the judge, Army Col. James L. Pohl, got it wrong when he ordered the U.S. government to give defense attorneys, not the public, classified details of prisoner Abd al Rahim al Nashiri’s four-year odyssey through the CIA’s secret prison network. They’ve invoked national security and want him to rescind the order.
“It’s a brave and courageous order. That’s why they want you to walk it back,” attorney Richard Kammen told Pohl, the judge.
“The cynical part of me thinks it’s going to get you fired,” he said, likening the magnitude of what Pohl did to Judge John Sirica‘s order to the White House to produce audiotapes in the Watergate scandal.
For the prosecution, Army Brig. Gen. Mark Martins argued that no individual has “a monopoly on who is patriotic or courageous,” and offered a counter-proposal. The government would tweak a case protective order, he said, to let attorneys for the first time share some limited classified information with Nashiri as an alternative to giving defense lawyers a deep dive into the details of the spy agency’s most closely guarded secrets.
The issue is a pivotal one for the war court as it edges toward the February 2015 trial of Nashiri, a Saudi accused of orchestrating al-Qaida’s bombing of the USS Cole warship off Yemen in October 2000. Seventeen U.S. sailors died, and the Pentagon prosecutor is seeking the death penalty, if Nashiri’s convicted.
Pohl is also the judge making discovery decisions ahead of the tribunal of accused 9/11 mastermind Khalid Sheik Mohammed and four alleged accomplices, who also face the prospect of military execution. And their lawyers, like Kammen, argue the CIA tortured those suspects and want the details in order to mount a defense and discredit prosecution evidence.
On April 14, the judge ordered the government to give Nashiri’s lawyers classified material providing explicit details of the now defunct interrogation and detention program — the names of agents, medical staff and guards who worked in the black sites as well as a chronology of where he was held and cables that discussed his interrogations.
Besides being waterboarded, the 49-year-old Saudi was subjected to a mock execution and threatened with a power drill and handgun during interrogation.
Kammen said in court Wednesday that one account of Nashiri’s waterboarding described observers as being so upset by it they vomited. Pohl’s order to name names could help the defense find those people, he argued.
Martins countered that Congress specifically created a system to shield certain national-security information from defense lawyers with top secret security clearances to avoid what he called “the disclose or dismiss dilemma.”
The CIA won’t say whether it would comply with the order. If it refuses, and Pohl won’t back down, the court or attorneys could seek dismissal of the charges.
Separately Wednesday, defense lawyers asked Pohl to get them a copy of the entire Senate Intelligence Committee’s “Torture Report.” It details not only Nashiri’s treatment in CIA custody but describes interrogations of other captives that might implicate their client.
Prosecutors replied that the judge, whose job was created by Congress, has no authority to order the Senate to hand over a copy of the report. The prosecutors also said that they haven’t obtained or read the report to decide what portions defense lawyers might be entitled see.
An executive summary — 480 pages — of the Senate report is undergoing a declassification review, at the request of the White House. But defense lawyers argue, separately from the judge’s order up for reconsideration, that they want all 6,600-plus pages of it, notably analysis, to evaluate what their client told them about his torture in U.S. custody between his capture in Dubai in 2002 and arrival at Guantánamo for trial in September 2006.
In a letter to President Barack Obama on April 7, Sen. Dianne Feinstein described the report as “the most comprehensive accounting of the CIA's Detention and Interrogation Program, and I believe it should be viewed within the U.S. Government as the authoritative report on the CIA's actions.”
But the judge questioned aloud in court whether the report constituted evidence that could be admissible at trial, versus analysis. Lead prosecutor Navy Cmdr. Andrea Lockhart said neither the prosecution nor the defense lawyers could know the answer to that because neither side had read it and her team had not evaluated whether it was material or relevant at trial.
Lockhart left unclear, in direct reply to the judge’s question, whether case prosecutors had actually asked for a copy of the report. She said only that the prosecution expected the executive summary to have undergone a declassification review sometime this summer.
For Nashiri, Army Maj. Tom Hurley noted that there is vigorous debate inside government over what portion of the Senate summary might be released. “The cruel part of the cruel joke that is the government's response is that it suggests this belief that the United States government itself is going to get it together and disclose some portion of this report.”
Nashiri is accused of orchestrating al-Qaida’s suicide bombing of the U.S. Navy warship at the port of Aden, Yemen. Two men motored an explosives-packed skiff alongside the Cole and blew themselves up.
Wednesday’s three-day hearing began with an unusual closed session of the pretrial proceedings that began without public explanation and “lasted an hour and a half, roughly,” according to a Nashiri defense lawyer, Navy Cmdr. Brian Mizer.
Mizer said he was forbidden to describe what went on in the session, which was held under a provision of the post 9/11 war court that allows lawyers to huddle with the judge to figure out what portion of the court proceedings can be conducted in secret.
In the past, the judge first held an open session to explain in advance the nature of the proceedings with prosecutors and defense attorneys that would exclude the public and Nashiri.
This time, the attorneys, staff and trial judiciary arrived on a flight from the Washington, D.C., area Tuesday afternoon and started the hearing at around 9 a.m. without explanation.