A military judge isn’t backing down from his order to the U.S. government to give defense lawyers details of the accused USS Cole bomber’s odyssey through the CIA’s secret prisons, but may let prosecutors shield the identities of some agents, according to people who have seen a secret Guantánamo war court order.
Army Col. James L. Pohl, the judge, issued an 11-page ruling Tuesday after a three-hour closed hearing May 29 at Guantánamo with defense and prosecution attorneys and another meeting a day later just with prosecutors.
In the order, according to three people who have read it, the judge retains the thrust of an April 14 discovery order requiring the U.S. government to give prosecutors, in classified fashion, precise details — names, dates, nations — of Saudi prisoner Abd al Rahim al Nashiri’s four years of interrogation and detention in CIA custody.
Pohl’s ruling was sent to lawyers at 3:30 p.m. Tuesday, sources said. Thursday, the war court website disclosed its existence, under seal for up to 15 days while intelligence agencies review it to black out secret information, with this lengthy notation:
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“Military judge order regarding government motion to reconsider AE120C in part so the comission may take into account declassification efforts underway at prior prosecution request, clarify the discovery standard the commission is applying, and safeguard national security while ensuring a fair trial.”
At the Pentagon, Army Lt. Col. Myles Caggins III said the prosecution “is not inclined to appeal the revised order” to the U.S. Court of Military Commission Review. An appeal could stall progress in the death-penalty tribunal of Nashiri as the alleged architect of al-Qaida’s bombing of the USS Cole off Yemen in October 2000.
“They are continuing to study the ruling,” he said, adding that the prosecution believes the judge provided enough relief in his revision to go forward.
The discovery issue is seen as a bellwether for the court’s other death-penalty case.
Pohl is also presiding at the 9/11 trial of five men accused of conspiring in the terrorist attacks that killed almost 3,000 people. There, the prosecution is similarly seeking to shield from defense lawyers the details of the so-called “black site” program that waterboarded the alleged mastermind Khalid Sheik Mohammed 183 times and denied its captives access to attorneys and visits by the International Red Cross.
At issue is not whether the public can know what happened in the secret CIA prisons — it can’t, because the information is classified — but whether defense lawyers can learn some of the agency’s deepest secrets because they, like the prosecutors, have top-secret security clearances.
Case prosecutors declined, through the Pentagon spokesman, a request to summarize Pohl’s latest order.
But a memo circulated in the office of the Chief Defense Counsel, and obtained by the Miami Herald, says Pohl “stands by the prior order, insofar the government is required to produce information about the who, what, where, and when of both Nashiri and his alleged co-conspirators' treatment in CIA custody.”
It has one “major concession,” the memo says, and gives prosecutors some “leeway in redacting, ‘anonymizing’ and summarizing the details.”
The “leeway” comes from a footnote, according to those who read the ruling. Pohl suggests that prosecutors might selectively invoke the Intelligence Identities Protection Act — he cites in U.S. law, “50 USC 421” — to withhold from defense lawyers the names of CIA agents who worked at the black sites.
Left unclear is whether the government could also try to shield the identities of medical personnel, guards, interrogators and contractors on a case-by-case basis.
The order seeks details so far denied to Nashiri’s lawyers, including the names of countries where the CIA imprisoned him, how he was transported, restrained and clothed, photographs of his confinement and interrogators’ statements, logs and notes of Nashiri’s questioning as well as others named in the case.
Pohl has scheduled Nashiri’s trial to start Feb. 9, but between prosecution challenges and uncertainty about whether the CIA will comply, that date seems unlikely.
Two suicide bombers attacked the USS Cole, a guided-missile destroyer, off Aden, Yemen, on Oct. 12, 2000. Seventeen American sailors were killed and dozens more were injured.
U.S. agents captured Nashiri in Dubai two years after the attack. He was spirited through a series of secret CIA prisons before being taken to Guantánamo in September 2006.
The defense counsel memo predicts that, regardless of whether the prosecutors appeal or seek to create summaries in collaboration with the judge, “the ruling is likely to delay the scheduled trial date in the Nashiri case, while the details get worked out, probably until next summer.”
Prosecutors have argued that Pohl does not have the authority to order such sweeping government disclosure. Congress created a system of shielding that information from defense teams, they argue — even from attorneys with top-secret clearances.
Separately, the judge has yet to rule on a request by Nashiri’s lawyers for a complete copy of the Senate Select Committee on Intelligence’s so-called “Torture Report,” a massive, classified examination of the CIA’s secret interrogation program — 500 pages of which the CIA has reviewed for declassification and passed on to the White House.
Nashiri’s defense attorneys want the whole thing.