Defense lawyers for a former CIA captive awaiting a death-penalty trial as the alleged mastermind of the USS Cole bombing asked the judge Tuesday to secure a U.S. government copy of the full so-called “Torture Report” before it disappears into a Senate vault.
The Pentagon’s chief war crimes prosecutor, Army Brig. Gen. Mark Martins, opposed the request. Neither the judge nor the defense lawyers, he said, were entitled to the entire 6,200-page report of the Senate Select Committee on Intelligence about the CIA program that held their client Abd al Rahim al Nashiri, a 50-year-old Saudi, captive for four years.
A recently released partially redacted 524-page slice of the report shows that agents waterboarded Nashiri, threatened him with a power drill and a handgun, and force-fed him rectally when he went on a hunger strike. It also showed the spy agency secretly held him at Guantánamo, out of reach of the International Red Cross, then spirited him away in 2004 — out of reach of anticipated legal rights.
Nashiri’s lawyers want access to the whole thing, either to challenge evidence at trial or to argue the United States has lost the moral authority to execute him if he’s convicted.
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If not that, death penalty defender Richard Kammen told the trial judge, Air Force Col. Vance Spath, the court should at least obtain a copy from the Department of Defense or some other U.S. government entity to review it himself — or safeguard it for a future appeal.
Intelligence committee staff members wrote and researched the report during the chairmanship of California Sen. Dianne Feinstein, a Democrat. She distributed it throughout the Executive Branch to those with high enough security clearances. Now a Republican, Sen. Richard Burr, is chairing the committee and reportedly wants all copies of it returned to be locked in a vault.
Martins disclosed in court that his office did not have a copy of the report. His staff just got permission on Feb. 18 from the Senate committee to read it and would decide which portions defense lawyers should receive ahead of Nashiri’s eventual death-penalty war crimes tribunal.
“We are reviewing it on site under appropriate security protocols,” Martins said. “It would turn the normal discovery process upside-down if you became this agent of discovery here.”
The general warned the judge against allowing “a fishing expedition into an area that still has very, very sensitive information that really saves lives.”
He said the so-far released summary included “the most important pieces” and “are fully usable now by the accused with counsel. This characterization just no longer holds water.”
Kammen replied to the judge: “In a fair system, they don’t get to determine what we need. We determine it, and then you determine it.”
Moreover, Kammen said, Nashiri’s legal defense team has been cleared to handle top secret information, “and we all respect our obligation under those clearances.”
The two lawyers then sparred in court over whether the defense lawyers’ security clearances entitled them to read and safeguard the report’s secrets — just like the prosecutors.
Kammen said they did. Martins replied they did not have “a need to know” — and that Kammen’s claim that they did illustrated why the defense team, someone in “an adversarial position to the government,” shouldn’t get to read the report.
“It is well understood that if you increase the number of people who know a very sensitive fact, you exponentially increase the chances through good faith efforts and people doing their jobs,” Martin told the judge.
“But to fail to understand that basic piece of how we protect secrets is itself an indicator of why this shouldn’t be done,” the general continued. “If counsel has got that view that, hey, anybody who has a clearance could know it, he is misunderstanding a very fundamental principle.”
Seventeen U.S. sailors died in al-Qaida’s suicide bombing of the USS Cole bombing off Yemen’s Aden port on Oct. 12, 2000, and prosecutors allege Nashiri was the mastermind.
The case has gone on for years, in part because defense lawyers have been trying to uncover what the CIA did to Nashiri during his four years of secret detention.
Judge Spath did not rule on the request that he, at the very least, order the government to give him a copy of the report. He concluded a two-week pretrial session early, a day after ruling that a senior Pentagon official attempted to unlawfully influence his decision making.
The hearings resume with a week-long session April 6.
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