USS Cole case prosecutors met privately with the war court judge Friday — a practice permitted in military commissions but rarely used — in a bid to persuade him to abandon his sweeping CIA discovery order.
Separately, a staff member at the Senate Select Committee on Intelligence clarified Friday that no one at the war court had requested a copy of its so-called, classified “Torture Report” describing the CIA’s treatment of secret prisoners in spy agency custody before they were dropped off at Guantánamo in September 2006.
Lawyers for Abd al Rahim al Nashiri, 49, who was held for four years by the CIA, asked the judge this week to get them a copy of the report as they prepare for the Feb. 9 start of his death-penalty tribunal.
The Washington Post reported that the Senate document describes, among other things, Nashiri’s waterboarding and abusive interrogations as well as analysis that officials hyped the Saudi’s role as mastermind of the suicide bombing of the warship that killed 17 U.S. sailors off Yemen on Oct. 12, 2000.
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In court arguments Wednesday, a case prosecutor left ambiguous whether a request had been made to the Senate committee for a copy of the more than 6,000-page report. It’s classified and kept in a safe.
“We are actively seeking it. And that is what I would submit of where we are at,” Navy Cmdr. Andrea Lockhart, the case prosecutor, told the judge, Army Col. James L. Pohl.
On Friday, a Senate Intelligence Committee staff member told the Miami Herald, on condition of anonymity because that person was not authorized to release an official statement, that “we have not been asked for a copy of the report for military commissions purposes.”
Separately, the CIA is evaluating the executive summary of that report at White House request to see what portion could be declassified and made public.
“The executive summary and findings and conclusions of the report are undergoing a declassification process and we look forward to that being completed and those documents being released publicly,” the committee staff member said. “We are taking no action separately at this time.”
Friday’s hearing was cloaked in secrecy. Prosecutors led by Army Brig. Gen. Mark Martins met with Pohl, the colonel presiding in the case, for a process that’s described in the war court manual as a “presentation” needed to protect state secrets that mimics a federal court procedure.
At issue was Pohl’s April 14 order to the U.S. government to give defense attorneys, in classified fashion, a chronological accounting of what the spy agency did with Nashiri from his capture in 2002 to his arrival at Guantánamo — including the names of countries where he was held and medical, intelligence and guard staff at the secret prisons.
Defense attorneys in open court Wednesday urged Pohl not to reverse himself. But prosecutors argue that he went too far in the order and are invoking a national security exception. Left unclear in the public argument is what would be at risk by giving the information to lawyers with top secret clearances and bound to keep the same secrets as the prosecution.
Under military commission rules, the court was supposed to transcribe Friday’s private hearing and, if the judge does what the prosecutor wants, the transcript would be sealed in a top secret site for potential appellate review, in case of a conviction.
Friday’s was not the first such ex-parte, in camera (one party, in chambers) hearing in the Nashiri case — and apparently not the first where the judge granted a prosecutor’s private, national security request and agreed to meet.
A notation in the Guantánamo war court website showed that in 2012 prosecutors submitted 800 pages of secret filings that defense lawyers could not see and then held a May 8, 2012, hearing. It was captured in 25 pages and sealed at a top secret site in Alexandria, Va.
Martins did not describe what happened at Friday’s session in a statement he issued afterward that declared “a significant amount of work was accomplished” in a three day-hearing that was “partially foreclosed from public attendance due to a classified session” on Thursday.
He also noted that, in the Nashiri case so far, “over 94 percent of that process has been open to the public.”
• In an unrelated war court development Friday, the attorney for a Saudi man accused as a co-conspirator in the Sept. 11, 2001, terror attacks said his client,Mustafa al Hawsawi
, 45, wants his own death-penalty tribunal.
“A joint trial invites a verdict of guilt by association,” attorney Walter Ruiz said in a statement to the Miami Herald. It added that Hawsawi is “not interested in more delays.”
Hawsawi is the fifth man accused of conspiring in the attacks that killed almost 3,000 people in New York, Pennsylvania and at the Pentagon. He was captured in Pakistan in March 2003 with accused mastermind Khalid Sheik Mohammed and allegedly helped the 9/11 hijackers with money, Western clothing, traveler’s checks and credit cards.