In a first, former CIA captive appeals Guantánamo trial to Supreme Court

Activists demonstrate “water boarding” technique during a protest in front of the U.S. Supreme Court, Jan. 11, 2007 in Washington D.C.
Activists demonstrate “water boarding” technique during a protest in front of the U.S. Supreme Court, Jan. 11, 2007 in Washington D.C. GETTY

Lawyers for the man accused of orchestrating the USS Cole bombing are asking the U.S. Supreme Court to intervene in the military tribunal here using accounts of the captive’s CIA torture drawn from declassified documents and an interrogator’s recent memoirs.

The 38-page petition with hundreds of pages of supporting documents describes Abd al Rahim al Nashiri’s being sodomized, kept naked and kenneled like a dog, crammed into a box the size of an office safe and being threatened with a revved power drill while hanging shackled and nude from a cell ceiling.

And that’s from the portion that isn’t blacked out.

In the petition, the Pentagon-paid lawyers ask the justices to let them challenge Nashiri’s U.S. military detention in federal court — now, before his Guantánamo death-penalty tribunal — because the CIA subjected him to years of “physical, psychological and sexual torture.”

They also asked the justices to resolve the open legal question of when the “War on Terror” began.

A lower court ruled that civilian courts should stay out of the Nashiri case until the Saudi’s capital war crimes trial is over. His is the first case of a former CIA captive appealing to the Supreme Court.

At the war court last Wednesday, defense attorney Rick Kammen notified the tribunal judge, Air Force Col. Vance Spath, of the once-classified filing. Lawyers for the Saudi submitted the document to the Supreme Court on Jan. 17. It took the court’s “Classified Information Security Officer” two months to decide which parts the public could see.

Large portions of the supporting documents are completely blacked out, and perhaps 20 percent of the petition. The Miami Herald obtained both before the petition is officially docketed, sometime next week.

Nashiri is accused of orchestrating al-Qaida’s Oct. 12, 2000, attack on the USS Cole, a warship on a refueling stop off Aden, Yemen. Seventeen U.S. sailors were killed and the destroyer was incapacitated when two suicide bombers in what looked like a garbage skiff pulled up alongside it and blew up the bomb-laden boat.

In some instances, the Supreme Court petition seeks to make its case for a review by drawing from the recently published memoirs called “Enhanced Interrogation” of former CIA contract psychologist James Mitchell. Its subtitle is “Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America,” and it offers a colorful defense of the spy agency’s behavior in the clandestine offshore prison program.

Nashiri was “a really small guy” who slipped through his straps on the waterboard, Mitchell says in one account. The documents Nashiri’s lawyers provided the court include photos of the waterboard — images the public can’t see.

Nashiri’s lawyers include a page from another CIA operative’s memoir — “Hard Measures” by former director of the National Clandestine Service, Jose Rodriguez — to note one CIA interrogator challenged the label of Nashiri as a “mastermind.” The interrogator called Nashiri “the dumbest terrorist I have ever met.”

In other instances, we see documents furnished to the Supreme Court about Nashiri’s 5-year-old war crimes case not found on the Pentagon website whose motto is “Fairness * Transparency * Justice.”

Included is a prosecution timeline of Nashiri’s treatment and travels in the secret prison network the Bush administration set up to interrogate captives beyond the reach of federal courts. The judge approved it as a substitute for original CIA evidence.

It’s almost entirely blacked out but gives a glimpse into how prosecutors reduced a four-year, nine-stop odyssey in the “Black Sites” into 23 pages. In one line, the prosecution chronology says: “A stiff brush allegedly was used to bathe Nashiri.”

From “Enhanced Interrogation,” the lawyers offer Mitchell’s description of watching an interrogator “dousing al-Nashiri with cold water while using a stiff-bristled brush to scrub his ass and balls and then his mouth.” Mitchell calls it an unauthorized, “coercive measure.”

In their plea for Supreme Court review, Nashiri’s lawyers argue that since the last time they looked at the military commissions — upending it in Hamdan v. Rumsfeld — a lack of “timely judicial oversight ... has allowed this novel system to devolve into dysfunction.”

Nashiri, who the CIA handed over to military custody in 2006, was first charged in the war crimes case in November 2011. Progress toward trial has been stymied by defense attorneys’ efforts to get evidence from the Black Sites. Judge Spath said last week that he would start the trial in 2018. He also ruled that Nashiri’s lawyers could call Rodriguez, Mitchell and two others from the Bush-era CIA about the spy agency’s destruction of court-order protected videotapes of interrogations. Prosecutors have yet to challenge that decision.

Another recently surfaced submission that may interest the justices is a February 2004 CIA email, or the part that the spy agency declassified last year.

In it, two senior CIA officials discussing whether to remove its captives from a secret Black Site at Guantánamo two months before the U.S. Supreme Court would hear its first case on the status of war-on-terror captives at the U.S. Navy base in Cuba. Among those agreeing to the move, according to the 2004 email: The solicitor general, at the time Ted Olsen.

The Senate Torture Report shows the Bush administration did just that — spirit five captives, Nashiri among them, from the base in April 2004 before the court’s Rasul v. Bush gave Guantánamo captives access to courts and attorneys. He wouldn’t be charged with a crime for another seven years.

Also included is a 42-page report by three U.S. Army mental health experts — a psychiatrist and two psychologists — that diagnosed Nashiri with post-traumatic stress disorder and major depression. That we knew. But the mental health experts from Walter Reed Hospital also got to read “custodial reports” from his time with the CIA, documents Nashiri’s Guantánamo medical team doesn’t get to see:

“His experiences included: walling, water boarding, facial slaps, attention grabs, sleeping in various size boxes, sleep deprivation, hooding, being stripped naked, being shackled to a floor, exposure to cold temperature in his cell, ambient noise, and someone racking a gun and revving a power drill near his person.”

They also have a five-page declaration from Dr. Sondra Crosby, who has testified at Guantánamo as an expert on torture, offering a short discourse on 1960s-era “learned helplessness” that inflicted “uncontrollable pain” on dogs. Based on meeting the man and documents she’s seen, Crosby wrote in October 2015 that Nashiri “is most likely irreversibly damaged by torture that was unusually cruel and designed to break him.”

The Saudi was among the earliest captives in the CIA’s prison network set up with President George W. Bush’s permission after the Sept. 11 attacks. But he wasn’t the first. A captive known as Abu Zubaydah was test subject No. 1 of the clandestine experiment.

The public portion of the Senate’s so-called CIA Torture Report shows agents put Zubaydah inside a coffin-sized box for enough hours to total 11 days, and in a smaller, office-safe-sized box for 29 hours. Nashiri’s petition says he got the claustrophobic box treatment, too.

Carol Rosenberg: 305-376-3179, @carolrosenberg