Quick, 9/11 lawyers argue, preserve Senate ‘Torture Report’ before Trump takes office

In this March 3, 2005 file photo, a workman slides a dustmop over the floor at the Central Intelligence Agency headquarters in Langley, Va.
In this March 3, 2005 file photo, a workman slides a dustmop over the floor at the Central Intelligence Agency headquarters in Langley, Va. ASSOCIATED PRESS

Defense attorneys for the accused plotters of the 9/11 attacks urged the military judge Wednesday to safeguard a copy of the so-called Senate Torture Report on the CIA’s secret prison program before President-elect Donald Trump takes office.

All five men were held in the CIA’s Black Sites — some of them waterboarded and subjected to rectal abuse, according to the report — and the lawyers argue the entire 6,700-page document provides the lurid details they will need to try to spare the accused terrorists’ execution. No trial date as been set but they are charged with hatching the hijackings that killed 2,976 people in New York, Pennsylvania and at the Pentagon on Sept. 11, 2001.

“You don’t have to read it,” defense attorney Jay Connell told the judge, Army Col. James L. Pohl, asking him to simply preserve it. He never once mentioned the name of President-elect Donald Trump but noted that the coming administration has been “promising waterboarding or worse and there are many reasons to believe it is hostile to preservation of the report.”

The Sept. 11 judge issued a one-page order to the U.S. government to let him know by Dec. 16 if the Pentagon has a copy of the full Senate ‘Torture Report.’

Please decide by Jan. 21, said David Nevin, defense attorney for alleged mastermind Khalid Sheik Mohammed, not mentioning that is Trump’s first full day in office. Undisclosed chapters of the report “show medical experimentation. They show torture. They show extremely important facts that can be offered in mitigation on behalf of Mr. Mohammed.”

The chief prosecutor, Army Brig. Gen. Mark Martins, opposed preservation in the war court record.

He called the report, crafted when Democrats ran the Senate, “opinions and analysis of the legislature.” The defense attorneys, like the public, have access to the redacted nearly 500-page summary of the report that the Senate Select Committee on Intelligence released in December 2014, the general added.

Martins repeatedly refused to answer a question from Pohl on whether the Pentagon actually had a full copy of the report, which is classified Top Secret.

By early afternoon, Pohl issued a one-page order to the U.S. government to determine and notify him in writing, by Dec. 16, “whether the Department of Defense is in possession of a copy of the SSCI report,” according to two people who saw the order.

Pohl has demonstrated his willingness to order the White House to preserve something. In 2004 he forbade the Bush administration from razing the Abu Ghraib prison in Iraq while he was handling the courts martial of Army National Guard MPs who abused detainees there.

Martins argued the Top Secret document is a Senate work product, and that an Army judge sitting in Guantánamo has no authority to order preservation of the report, or a copy of it.

Moreover, he said, prosecutors had been studying the full report at a Senate vault — with permission of the committee. They’re determining what evidence mentioned in the study of the CIA’s 2002-06 Rendition, Detention and Interrogation Program should be provided to defense attorneys — either in raw form or through substitutions approved by the judge.

MORE: Sept. 11 judge has handled tough cases before

At issue now is not whether defense lawyers can see the report. Pohl has yet to rule on that.

For now, the defense lawyers want the entire report added to the 9/11 case appellate record of classified evidence, held in a vault in Arlington, Virginia. In court Wednesday, they argued that fewer than a dozen copies exist, and all might vanish by the time the five men reach trial.

In January 2015, Republican Sen. Richard Burr, who replaced Democratic Sen. Diane Feinstein as Senate Intelligence Committee chairman, wrote Obama seeking return of all Executive Branch copies. That hasn’t happened.

With the Republicans poised to run both the White House and Congress, they wonder if the new chief executive will comply with Burr’s request.

Connell noted a news report from May about the CIA’s Inspector General “inadvertently” destroying its copy. But, reached at the agency Wednesday, spokesman Dean Boyd said the CIA still has a copy.

It is believed that the Pentagon has a copy, too. Defense lawyers argued that Pohl could order a Pentagon copy preserved, or turned over to the court. The judge repeatedly asked Martins if there was a copy at the Department of Defense; Martins repeatedly answered that his office was studying a committee copy at the Senate, at one point suggesting that other versions might not be final drafts.

Already at issue in the case is the prosecutors and judge secretly approving the destruction — or decommissioning, as prosecutor Bob Swann put it Wednesday — of one of the CIA prisons while defense lawyers believed Pohl had a preservation order on all Black Sites.

Prosecutors say the decommissioning was lawful, they created a videotape of the place but through a mistake didn’t provide the defense lawyers timely or advance notice.

The families of four men who were killed in New York City on 9/11— Geoffrey Campbell, Michael Diehl, Terrence Farrell and Robert Murach — are at Guantánamo this week, watching the war court proceedings as guests of the office of the Pentagon prosecutor.

All of them declined to speak to reporters Wednesday about what they’ve seen in the proceedings, which go into closed session on Thursday. They may hold a news conference later in the week.

Carol Rosenberg: 305-376-3179, @carolrosenberg