Smart. Sharp. Funny. Fearless.
Sunday, June 24, 2018

By Carol Rosenberg, The Miami Herald

GUANTANAMO BAY NAVY BASE, Cuba—A defense attorney for a waterboarded prisoner told an Army judge he was as brave as the federal judge who helped topple the presidency of Richard M. Nixon in an impassioned plea on Wednesday to not reverse an order to let lawyers see details of the CIA’s black site program.

Prosecutors argue that the judge, Army Col. James L. Pohl, got it wrong when he ordered the U.S. government to give defense attorneys, not the public, classified details of prisoner Abd al Rahim al Nashiri’s four-year odyssey through the CIA’s secret prison network. They’ve invoked national security and want him to rescind the order.

“It’s a brave and courageous order. That’s why they want you to walk it back,” attorney Richard Kammen told Pohl, the judge.

“The cynical part of me thinks it’s going to get you fired,” he said, likening the magnitude of what Pohl did to Judge John Sirica‘s order to the White House to produce audiotapes in the Watergate scandal.

For the prosecution, Army Brig. Gen. Mark Martins argued that no individual has “a monopoly on patriotism,” and offered a counter-proposal. The government would tweak a case protective order, he said, to let attorneys for the first time share some limited classified information with Nashiri as an alternative to giving defense lawyers a deep dive into the details of the spy agency’s most closely guarded secrets.

The issue is a pivotal one for the war court as it edges toward the February 2015 trial of Nashiri, a Saudi accused of orchestrating al-Qaida’s bombing of the USS Cole warship off Yemen in October 2000. Seventeen U.S. sailors died, and the Pentagon prosecutor is seeking the death penalty, if Nashiri’s convicted.

Pohl is also the judge making discovery decisions ahead of the tribunal of accused 9/11 mastermind Khalid Sheik Mohammed and four alleged accomplices, who also face the prospect of military execution. And their lawyers, like Kammen, argue the CIA tortured those suspects and want the details in order to mount a defense and discredit prosecution evidence.

On April 14, the judge ordered the government to give Nashiri’s lawyers classified material providing explicit details of the now defunct interrogation and detention program — the names of agents, medical staff and guards who worked in the black sites as well as a chronology of where he was held and cables that discussed his interrogations.

Besides being waterboarded, the 49-year-old Saudi was subjected to a mock execution and threatened with a power drill and handgun during interrogation.

Kammen said in court Wednesday that one account of Nashiri’s waterboarding described observers as being so upset by it they vomited. Pohl’s order to name names could help the defense find those people, he argued.

Martins countered that Congress specifically created a system to shield certain national-security information from defense lawyers with top secret security clearances to avoid what he called “the disclose or dismiss dilemma.”

The CIA won’t say whether it would comply with the order. If it refuses, and Pohl won’t back down, the court or attorneys could seek dismissal of the charges.