Judge James Pohl orders agency to produce detailed account of its detention of USS Cole bombing suspect at secret prison
A judge overseeing the trials of terror suspects at Guantánamo Bay has ordered the CIA to turn over details of its treatment of a detainee in one of its secret prisons, a watershed ruling that sets the stage for the military commissions to learn much more than the US public about the agency’s brutal interrogations.
While the ruling is still sealed, Judge James Pohl, an army colonel, issued the order on Monday for the CIA to produce a detailed account of its detention and interrogation of Abd al-Rahim al-Nashiri, who is charged with orchestrating the bombing of the USS Cole in 2000 that killed 17 US sailors.
Details of the order, issued through the military commissions prosecution team, were first reported by the Miami Herald on Thursday.
Pohl is also the judge overseeing the stalled 9/11 tribunal involving Khalid Sheikh Mohammed and four other detainees. Their defense attorneys have long bemoaned their lack of access to CIA information about the treatment of their clients before their 2006 arrival at Guantánamo, which they argue directly impacts their fitness to stand trial and the evidence underlying their cases.
The defense teams in the 9/11 tribunal said on Thursday they would seek Pohl’s ruling on similar disclosure orders covering everything from a chronology of their clients’ detention, to any approvals by the CIA of the use of particular interrogation techniques.
Pohl’s move comes as the CIA is locked in a bitter public battle with the Senate intelligence committee over the panel’s recent report into the agency’s post-9/11 torture programs. It opens a new front for the agency in an unexpected venue.
A bright spot for the CIA may be that Pohl has not ruled that information regarding Nashiri’s treatment – which, according to declassified information, involved waterboarding and a threat with a gun and a revved power drill – must be made public, but rather turned over to the commission.
Lawyers for one of the defendants, Ammar al-Baluchi, filed a motion on April 2 to acquire the Senate committee report. Lawyers for Baluchi and co-defendant Ramzi bin al-Shibh said that the defense teams were now petitioning Pohl to issue a similar order for CIA disclosure in their cases.
“It is important to know what happened, who did it, where did it happen, who authorized it, who knew about it, and what was the result,” said Baluchi’s attorney, James Connell.
“Those are the important thing to know in order to answer some of the hugest questions in this case: what was the pretrial treatment of the defendants, what was the impact on the admissibility of their statements, what impact does it have on the United States’ compliance with international standards, and what impact does it have on the appropriate sentence of the case, if any.”
Pohl’s order to the CIA reportedly requires the agency to turn over more information than is contained in the portions of the report that the committee recently voted to declassify, including communications between the so-called “black site” prisons and agency headquarters; names of interrogators; and the techniques used on Nashiri.
Brigadier General Mark Martins, the chief military commissions prosecutor in both cases, did not tip his hand as to whether he would contest the CIA disclosure order.
“We are studying that ruling,” Martins said.
“I can pledge that whatever happens, whatever we do will adhere to the rule of law and will be an effort to seek justice.”
CIA spokesman Dean Boyd declined comment, saying: “As a general matter, CIA does not comment on ongoing court litigation.”
Human rights advocates hailed Pohl’s ruling on the CIA as a potential transparency breakthrough.
“For the first time, the CIA is being forced to disclose details about secret black sites and torture that it has fought for years to hide,” said Hina Shamsi, an attorney with the ACLU.
“Without this information, defense lawyers cannot properly do their job and represent their client.”
Andrea Prasow of Human Rights Watch said the Pohl ruling “represents a chink in the armor of secrecy that the US government erected around its torture program”.
Along with the Senate report’s partial declassification, “it is only a matter of time before the public will learn the horrific details of officially sanctioned torture, and the pattern of lies designed not only to allow torture to continue, but to immunize torturers from prosecution,” Prasow said.
If the prosecution believes the defense teams in either the Nashiri or the 9/11 case ought to receive CIA accounts of their treatment in the agency’s custody but the CIA disagrees, Connell said the tribunals in either case would have to be paused to resolve the dispute.
“The agency with equities in that information can have a veto over the prosecution,” Connell said.
Spencer Ackerman at Guantánamo Bay
theguardian.com, Thursday 17 April 2014 18.39 BST
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