9/11 trial judge orders Pentagon to preserve a copy of the CIA ‘Torture Report’

U.S. Army military judge Col. James L. Pohl, shown in this July 7, 2005 file photo at Fort Hood, Texas, is the chief of the Guantánamo military commissions judiciary.
U.S. Army military judge Col. James L. Pohl, shown in this July 7, 2005 file photo at Fort Hood, Texas, is the chief of the Guantánamo military commissions judiciary. ASSOCIATED PRESS

A military judge ordered the Department of Defense on Tuesday to preserve a copy of the CIA “Torture Report,” but left undecided whether attorneys for the men accused of orchestrating the 9/11 terror attacks will be allowed to read it.

Army Col. James L. Pohl’s four-page order fell short of a request by defense attorneys to secure the full, classified 6,700-page Senate study of the CIA’s clandestine overseas prison program in a war court safe.

Click here to see the judge’s four-page preservation order.

Instead, the judge, who earlier in his career forbade the Bush administration from razing Iraq’s Abu Ghraib prison, blocked any notion of the Pentagon returning a rare copy of the report to the Senate Intelligence Committee, something Republican chairman Sen. Richard Burr has requested.

Pohl also disclosed that the Pentagon has two copies of the damning examination of CIA interrogations at the so-called Black Sites during the George W. Bush administration.

The Obama administration has partially declassified the report’s executive summary. But lawyers want the lurid details of detainees kept naked, deprived of food and sleep, rectally abused, waterboarded and shackled in stress positions to challenge both trial evidence and the possibility of military execution of the five men accused of conspiring in the worst terrorist attack on U.S. soil.

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Defense attorney Jay Connell called the decision “a small step toward accountability.” He represents Ammar al Baluchi, accused of helping send money to the hijackers who killed nearly 3,000 people on Sept. 11, 2001.

“During the last public preservation order for Black Sites, however,” Connell said, “the prosecution secretly obtained an order to decommission a Black Site without notice to the defense. The only real path to accountability is declassification of the full report.”

Defense lawyers last month urged Pohl to preserve a copy of the report before Obama leaves office. Prosecutor Army Brig. Gen. Mark Martins refused to say whether the Pentagon even had a copy — until the judge issued a court order instructing the chief war crimes prosecutor to find out.

The prosecution informed the court that the Department of Defense “maintains two copies” of the full report, which it treats as a “Congressional Record.”

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At issue, in part, was whether a war court judge could reach from his bench at this U.S. Navy base in Cuba to order other portions of the government beyond the Pentagon to preserve one.

Two other men have likewise ordered preservation of the report:

President Barack Obama decided to archive his copy with his presidential papers, meaning it could be reviewed for declassification and possibly made public in 2028.

Federal Judge Royce Lamberth has ordered the Department of Justice to put a copy in the top secret safe for classified Guantánamo litigation maintained by the U.S. District Court at 333 Constitution Ave., in Washington, D.C.

The Obama administration has yet to say whether it will challenge the order, or comply.

Lamberth has been handling the mostly nascent federal court appeal of another former CIA captive, Abd al Rahim al Nashiri, accused of orchestrating al-Qaida’s bombing of the USS Cole off Yemen that killed 17 sailors on Oct. 12, 2000.

Nashiri’s lawyers want a copy of the report before the Saudi’s Guantánamo trial, too. No trial date has been set in either case.

Carol Rosenberg: 305-376-3179, @carolrosenberg