With just weeks until Republicans take control of Congress and the White House, a federal judge has ordered the Obama administration to deliver to his court’s top secret storage site a copy of the so-called Senate Torture Report on the CIA’s Black Site prison program.
U.S. District Court Judge Royce Lamberth issued the two-page order Wednesday in Washington, in the mostly dormant federal court challenge of the Guantánamo detention of former CIA prisoner Abd al Rahim al Nashiri, 51. The Saudi who was waterboarded and rectally abused while a captive of the spy agency is awaiting trial by military commission as the alleged architect of al-Qaida’s Oct. 12, 2000, USS Cole bombing off Yemen that killed 17 U.S. sailors.
Lamberth also ordered the government to “preserve and maintain all evidence, documents and information, without limitation, now or ever in the [U.S. government’s] possession, control or custody, relating to the torture, mistreatment, and/or abuse of detainees held in the custody of the Executive Branch” since Sept. 11, 2001.
The Republican leader of the Senate Intelligence Committee, Richard Burr of North Carolina, has sought the return of what are believed to be eight Obama administration copies of the largely classified 6,700-page report, prompting fears that the damning examination of interrogation practices during the administration of George W. Bush won’t be available for death-penalty appeals in the Guantánamo military commissions cases. President Barack Obama recently decided to keep his copy in the top secret portion of his presidential archives sparing its destruction. But he declined to declassify it, meaning the earliest it could become public is in 2028.
The report has an entire chapter on Nashiri’s treatment during his 2002-06 CIA custody, and his Pentagon-paid lawyers asked the military judge in the capital case to furnish them with a copy for trial preparation. Alternatively, they asked the tribunal judge, Air Force Col. Vance Spath, to put a copy in the war court safe for an eventual appeal.
Spath refused, saying prosecutors were mining the classified report for the information the defense attorneys would be entitled to see. The chief prosecutor, Army Brig. Gen. Mark Martins, has dismissed the report that offers lurid details of detainees kept naked, deprived of food and sleep, rectally abused, waterboarded and shackled in so-called stress positions as a legislative work product, “opinions and analysis” — not evidence.
The 9/11 case judge has yet to rule on a recent request for a similar preservation order. Prosecutor Martins repeatedly refused to tell that case judge, Army Col. James L. Pohl, whether the Department of Defense still had a copy. At issue, in part, was whether a war court judge could reach from his bench at the U.S. Navy base in Cuba to order other portions of the government beyond the Pentagon to preserve one.
So Pohl ordered the prosecution to respond in writing. In a still-sealed Dec. 15 filing, prosecutors confirmed that the Pentagon “does have a copy of the complete report, which it keeps in an unidentified secure location,” said attorney Jay Connell, death-penalty defender for an accused Sept. 11 plotter, Ammar al Baluchi.
At the federal court, Lamberth had no such questions. Attorney General Loretta Lynch has a copy. “The Justice Department is reviewing the order and has no further comment,” said spokeswoman Nicole Navas on Thursday.
Nashiri’s attorneys, all but one of them paid by the Pentagon to defend him, were clearly contemptuous of the war court in its request for a federal, civilian protective order through the Saudi’s habeas corpus petition challenging his detention.
“Habeas proceedings are governed by distinct rules and concerned with legal issues, such as conditions of confinement, that are outside the military commissions’ competence,” they wrote in a 12-page brief that cited a Watergate-era protective order precedent, Halperin v. Kissinger. “And most crucially, habeas corpus proceedings are presided over by tenured federal judges, not by mid-level military officers.”
Lamberth, a Texan, has served on the federal bench for nearly 30 years. He was appointed by President Ronald Reagan, and previously practiced law in the Army, notably during the Vietnam War, and as a civilian at the Pentagon.
Justice Department attorneys opposing the order argued that such a preservation order was beyond the scope of an unlawful detention challenge, especially since the federal courts have mostly stayed out of ongoing military commissions prosecutions.
Under war court reforms by Congress, a captive would first have to be convicted, sentenced and have his case reviewed at the Pentagon before a federal court would examine a case. Even then, the U.S. Court of Appeals for the District of Columbia, more senior than Lamberth’s U.S. District Court, would get the review.
Nashiri’s lawyer, Rick Kammen, argues that if the defenders can’t use the Senate Study of the Rendition, Detention and Interrogation report at trial, appeals courts will need to see the graphic details of what happened to his client to evaluate any conviction and death sentence a military panel may hand down.