The CIA declined to comment again Tuesday on whether the agency would comply with a military judge’s week-old order to provide USS Cole case defense lawyers with some of the deepest, darkest secrets of its now-defunct overseas prison program.
“Our position on whether to comment to you has not changed,” said spokesman Dean Boyd. “As a general matter, the Agency doesn’t comment on matters of pending litigation.”
The question of compliance loomed over the first day of pretrial hearings in the death-penalty case of one-time waterboarded CIA captive Abd al Rahim al Nashiri, 49, as his attorneys argued unsuccessfully to get the judge who issued the sweeping discovery order to step down from the case.
The judge, Army Col. James L. Pohl, was recalled from retirement in 2010 to serve as chief of Guantánamo’s war court judiciary. The Army has to renew his contract each year. He rejected an argument that he has conflicting loyalties between the job and the law in the first day of a six-day hearing scheduled to consider 60 pretrial motions that set the stage for the war crimes trial later this year.
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Nashiri, a self-described former millionaire from Mecca, Saudi Arabia, spent the hearing swiveling in the defendant’s chair while family of some of the 17 sailors who were killed in al-Qaida’s suicide attack watched through soundproof glass. He is accused of orchestrating the Oct. 12, 2000, suicide bombing off Aden, Yemen. The prosecution seeks his military execution if he’s convicted.
That’s why, Pohl wrote in a five-page judicial order released Tuesday, Nashiri’s civilian and military attorneys are entitled to sweeping discovery about the CIA “black sites” where agents held Nashiri for four years. During that time, Nashiri was waterboarded, interrogated while nude, threatened at the point of a power drill and handgun, and told that his mother would be sexually assaulted.
The public won’t get the details because the information is classified. But Pohl ordered the agency to tell Nashiri’s lawyers the names of countries and places where their client was held in secret detention, chronologically; interrogation plans, including suggested, now outlawed, techniques that the CIA refused to use; and names of a wide range of people who worked at the secret prisons — from doctors and mental health workers to dentists and guards.
Pohl wrote that he “views the Prosecution’s obligation to provide discovery broadly and liberally, especially in light of the capital referral of the charges.” He also said Nashiri’s lawyers have an “ethical duty to conduct pretrial investigation in order to develop the full range of exculpatory, mitigation and extenuation evidence.”
The Miami Herald reported leaked details of the order last week. It is more sweeping in scope than first reported, and includes an order to provide details of the interrogation of other Guantánamo prisoners — notably former CIA captive Walid bin Attash, 35, a Yemeni awaiting his own death-penalty trial as an alleged accomplice in the Sept. 11, 2001, terror attacks.
Bin Attash is listed as an unindicted co-conspirator in the USS Cole case. His 9/11 defense lawyers argue that like Nashiri, bin Attash was tortured, and they want details of his CIA custody. But Pohl has yet to rule on the discovery issue in that case.
Boyd referred the question of compliance to the Defense Department, where the prosecutor has the option of asking Pohl to reconsider the order — or appeal it to a military commissions review panel.
“I’m not a spokesman for the Central Intelligence Agency,” said Army Lt. Col. Todd Breasseale, a Pentagon spokesman. “What I can tell you is that matters that are ordered by the judge are rightly discussed in court until they are fully litigated — and not by agencies of the U.S. government in the press.”
While the five-defendant Sept. 11 prosecution is presently stalled on whether a secret FBI criminal investigation has presented defense lawyers with a conflict of interest, the single-defendant Nashiri pretrial hearings have been systematically edging closer to trial.
That’s why the USS Cole case may set the stage for how much material the agency will provide to the war court created by President George W. Bush and then reformed by President Barack Obama and Congress.
Nashiri defense attorney Rick Kammen, however, put Judge Pohl on notice Tuesday afternoon that he would file an emergency motion for an explanation of the FBI probe. A filing Monday night by the Sept. 11 Special Trial prosecutor, Fernando Campoamor-Sánchez, suggested that an ongoing FBI criminal investigation might be broader than simply targeting someone in the 9/11 case, Kammen said, and defense lawyers want an explanation.