Guantánamo prosecutor uncovers CIA photos of accused bomber

The CIA has uncovered photos it took of an alleged al-Qaida bomber before the agency brought the waterboarded captive to Guantánamo in 2006, according to a partial transcript of a secret hearing in the USS Cole death-penalty case.

Prosecutor Joanna Baltes made the disclosure in the portion of a June 14 hearing at Guantánamo that government censors are now allowing the public to see.

Just three days before the secret hearing, another case prosecutor, Navy Cmdr Andrea Lockhart, announced in open court that the government had turned over to defense lawyers all evidence the government considered relevant in the case of Abd al Rahim al Nashiri, 48.

The Saudi captive is accused of organizing al-Qaida’s 2000 suicide bombing of the warship off Yemen’s port of Aden that killed 17 U.S. sailors. His trial could start next year.

But, at the hearing, Nashiri’s attorney argued that the defense is entitled to know more about what the U.S. agents did to the captive between 2002 and 2006 ”beyond waterboarding,” which the public already has learned about through unclassified abuse investigations. What attorney Rick Kammen asked for specifically, however, is blacked out under nearly 20 lines of hearing transcript.

At issue in the case is a classified prosecution motion that asks the case judge to adopt a secret finding that will govern some sort of non-transparent aspect of both the USS Cole and 9/11 death-penalty prosecutions.

The request is so sensitive that the Pentagon war court couldn’t conjure up a name for the legal filing beyond “CLASSIFIED.”

But the transcript makes clear the government is seeking to shield for “national security reasons” aspects of the CIA’s black site program in which the U.S. government hid CIA captives from both the International Red Cross and refused them lawyers during up to four years in the agency’s secret overseas prison network.

President Barack Obama ordered the program shut down when he took office. But by then Nashiri was already waterboarded by agents, interrogated with a revving drill and racked pistol to his head — and delivered to the U.S. Navy base in Cuba for prosecution in the U.S. Navy warship bombing case.

What makes the photos so potentially intriguing is that the CIA had at some point videotaped its use of Enhanced Interrogation Techniques on some captives, then lied to Justice Department lawyers about the tapes existence until after an agency operative destroyed them. This occurred after a judge had issued an order preserving evidence from the black sites.

Baltes said in the closed session that “the photos were newly discovered items that will be provided to the defense within probably the next week or so.” She said the images “are not necessarily specific to any particular location.”

Left unclear in the portion of the transcript the public is allowed to read is whether the CIA wouldn’t divulge to the prosecution where they took these photos — or if they were taken in no specific place, for example aboard secret flights that spirited black-site captives around the world.

To bolster its request for secrecy, Baltes said at the closed hearing, the prosecution included a declaration from former CIA Director Leon Panetta, who left the agency in mid-2011 to become Secretary of Defense, less than six months before Nashiri was formally charged in the death penalty case.

Left unclear is whether retired Army Gen. David Petraeus, who replaced Panetta at the agency, or his successor John Brennan endorsed the proposed secret structure discussed in the no-name motion at the Guantánamo court.

At the CIA, spokesman Dean Boyd said, since the case is in litigation, the agency would not comment on when the agency discovered it had the photos. Also, he referred to the Pentagon what, if anything the photos portray Nashiri doing.

The revelation comes in the heavily redacted 55-page transcript in which Nashiri’s defense lawyer, Kammen, lodges a protest that the accused was excluded from the pretrial hearing.

The secret motion for a secret finding somehow addresses a prosecution system of, as Kammen calls it, “sanitizing” CIA evidence. It borrows from federal classified protection procedures by creating summaries of CIA information, not the actual CIA documents about what it learned and how it treated Nashiri between his capture in Dubai in November 2002 and his surfacing at Guantánamo in September 2006.

Under the system, the judge, Army Col. James L. Pohl, gets to read whatever the CIA furnished to the prosecutors and gets to decide whether the summaries are sufficiently representative.

Kammen, a veteran death-penalty defender, calls the information particularly crucial in the mitigation phase of the trial, meaning he might need it to argue against the death-penalty — if the jury of military officers convicts Nashiri. He argued in the secret session that the summaries are insufficient.

Kammen also complained that there was no way to verify the accuracy of the prosecution's summary of how Nashiri had been treated because under the rules of the commission, Nashiri is not allowed to read the classified summaries.

Without letting the man held by the CIA read what they say happened to him, Nashiri can't say "how false they are, how incomplete they are, how misleading they are, how sanitizing they are." Baltes replied that Kammen can ask Nashiri his recollections and compare them to the summaries.

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