By Carol Rosenberg, The Miami Herald
GUANTANAMO BAY NAVY BASE, Cuba — The military judge in the USS Cole bombing case has ordered the U.S. government to give defense lawyers details — names, dates and places — of the CIA’s secret overseas detention and interrogation of the man accused of planning the bombing, two people who have read the still-secret order said Thursday.
Army Col. James L. Pohl issued the five-page order Monday. It was sealed as document 120C on the war court website Thursday morning and, according to those who’ve read it, orders the agency to provide a chronology of the overseas odyssey of Abd al-Rahim al-Nashiri, 49, from his capture in Dubai in 2002 to his arrival at Guantanamo four years later.
The judge’s order instructs prosecutors to provide nine categories of closely guarded classified CIA information to the lawyers — including the names of agents, interrogators and medical personnel who worked at the so-called black sites. The order covers “locations, personnel and communications” as well as cables between the black sites and headquarters that sought and approved so-called enhanced interrogation techniques, the two sources said.
It does not, however, order the government to turn over Office of Legal Counsel memos that both blessed and defined the so-called Torture Program that sent CIA captives to secret interrogations across the world after the Sept. 11, 2001 attacks — out of reach of International Committee of the Red Cross delegates.
“It’s a nuclear bomb that may shut down the case,” said one person who read the order and is not a part of the Cole case.
It covers so many of the agency’s closely guarded secrets that the source predicted “the prosecution would probably take an interlocutory appeal,” meaning rather than release the information Pentagon prosecutors will ask a military commissions appeals court to overrule Pohl.
A Pentagon spokesman had no immediate comment.
Even if the prosecution does secure the information from the CIA and releases it to Nashiri’s lawyers, that does not necessarily mean that the public will get to know the details.
The program is still classified, and Pohl ordered the material produced as discovery — for pretrial preparation in the case of Nashiri, the Saudi captive who the U.S. has called the mastermind of al-Qaida’s suicide bombing.
Two men sailed a bomb-laden skiff alongside the Cole on Oct. 12, 2000 and blew themselves up, crippling the warship and killing 17 U.S. sailors.
The development comes two weeks after the Senate voted to declassify a part of an investigation of the so-called CIA torture program that could contain some of the answers sought by lawyers for Nashiri before his death-penalty trial. But the judge’s order appears to go further to a level of detail not provided in the executive summary, findings and recommendations that might be made public, if President Barack Obama agrees.
It also follows the recent Pentagon release of unclassified parts of a secret Feb. 22 Cole case hearing among lawyers with security clearances that allow them to know certain aspects of the still-secret CIA Rendition, Detention and Interrogation (RDI) program.
One person who read Pohl’s ruling this week said the order “largely ordered a huge amount of RDI material produced to the defense.” Pohl apparently at one point specifies that information must be unredacted, not blacked out.
At that hearing, the lead prosecutor preparing for Nashiri’s Dec. 4 death-penalty tribunal, Navy Cmdr. Andrea Lockhart, argued that the government had provided the defense with anything “relevant” to trial preparation.
The defense doesn’t have the authority to “double-check the government’s work,” Lockhart told the judge, “and they certainly don’t have the right to do their own independent investigation” of what happened to Nashiri.
Pohl apparently concluded otherwise.
Defense lawyers want to independently reconstruct what happened to Nashiri in secret confinement to challenge the integrity of certain evidence and to argue that his mistreatment disqualifies a death penalty sentence.
The CIA waterboarded him, and an internal abuse investigation showed its agents also interrogated Nashiri while he was nude and that they also threatened him with a revving power drill, handgun and threats to sexually assault his mother.
The chief prosecutor, Army Brig. Gen. Mark Martins, has already noted that the Obama administration revamped the tribunal to prohibit use of involuntary interrogations at trial. In the transcript, Lockhart says all mistreatment of Nashiri is now in the public domain.
Navy Cmdr. Brian Mizer, one of Nashiri’s lawyers, told the Miami Herald recently that an investigation of the treatment should determine whether any of Nashiri’s answers to questions at Guantanamo were truly voluntary: “You have to get back to the past to determine whether this is just a dog barking on command.”
A military medical board has diagnosed Nashiri, 49, a self-described former millionaire merchant from Mecca, as having post-traumatic stress disorder and a major depressive disorder.
His lawyers want to interview officials who worked at the black sites, comb through manifests and read approved Standard Operating Procedures on so-called enhanced interrogation techniques that spelled out how to waterboard Nashiri in secret custody. And they asked for a list and timeline of the countries that hosted the CIA prisons on condition of anonymity.
JTF Guantanamo photo by U.S. Air Force Senior Airman Gino Reyes