The military judge in the USS Cole death penalty trial has rejected a defense request for a full copy of the so-called “Senate Torture Report,” saying case prosecutors decide what the lawyers for the accused terrorist are entitled to see.
Two rulings on the question by Air Force Col. Vance Spath, the judge, were under seal at the war court Wednesday. Defense attorney Rick Kammen, who read them, said by email, “the judge has deferred his obligation to ensure that the defense has all exculpatory evidence to the government.”
Last month at Guantánamo, lawyers for Abd al Rahim al Nashiri, 50, asked the judge to order the government to hand over the entire, classified 6,200-page report of the Senate Select Committee on Intelligence about the CIA program that held the Saudi captive for four years. Alternatively, they said, Spath should at the very least seal it in a vault to safeguard for future appeals.
Nashiri is in pretrial proceedings at Guantánamo as the alleged mastermind of al-Qaida’s suicide bombing of the war ship while on a refueling stop in Yemen Oct. 12, 2000. Seventeen American sailors were killed in the attack, and the Pentagon prosecutor seeks to have him executed, if he’s convicted.
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The small portion of the report the public can see shows that agents waterboarded Nashiri, threatened him with a power drill and a handgun, and force-fed him rectally when he went on a hunger strike. It also showed the spy agency secretly held him at Guantánamo, out of reach of the International Red Cross, then spirited him away in 2004 — out of reach of anticipated legal rights.
Defense lawyers sought the report to challenge evidence at the trial, for which no date has been set. Also, if Nashiri’s convicted, they wanted the material to argue that the United States has lost the moral authority to execute him.
The chief prosecutor, Army Brig. Gen. Mark Martins, argued at last month’s hearing that neither the judge nor the defense lawyers were entitled to the entire report. And the judge’s ruling agreed with him, said Kammen, a veteran criminal defense attorney.
“Unfortunately based upon our dealings with the prosecution,” Kammen said, “we have no confidence that the government recognizes or will meet its obligations.”
Martins uniformly refuses to comment on sealed rulings, saying the documents speak for themselves.
The prosecutor has consistently said that his office doesn’t have a copy of the report. A court filing says the Senate Committee granted prosecutors permission to review “the full study” on Feb. 18, and they are going through it “for potentially discoverable information.”
Kammen said Wednesday he has no reason to believe the CIA will fully cooperate with prosecutors to get the defense what it needs, “especially given the history of this case and the CIA’s unwillingness to produce material.
“The CIA has lied to virtually every governmental body,” he said. “It lied to district courts. It lied to the 9/11 Commission. It lied to the Senate. It’s disappointing that the judge continues to defer to the executive branch.”
The ruling was the latest by Spath to go against the defense, even as the court has suspended future hearings awaiting ruling by high courts in Washington, D.C., on structural appeals of the war court George W. Bush built and Barack Obama reformed.
Spath had earlier ruled, against the defense, that Nashiri gets adequate health care for Post Traumatic Stress Disorder and other issues related to his CIA interrogations. He also sided with the prosecution that it need not identify the method of execution before jury selection.
He did, however, recently order the U.S. to get Nashiri an MRI to look for brain damage, something currently impossible because there’s no such scanner at Guantánamo — and Congress has blocked transfer of detainees to the United States, even temporarily, for medical procedures. Kammen said the judge also ordered the government to identify the U.S. coalition partners at the time of the USS Cole bombing, the year before the Sept. 11 attacks — when President Bill Clinton was in office and the U.S. was not in a state of war.
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