By Carol Rosenberg, Miami Herald (TNS)

MIAMI — In 2004, as the U.S. Supreme Court was poised to let Guantanamo captives consult lawyers for the first time, the CIA spirited some men who now face death penalty trials from a clandestine lockup at the U.S. Navy base — and didn’t tell Congress.

Two years later, even as President George W. Bush announced at the White House Rose Garden that the spy agency had transferred its most prized captives to Guantanamo for trial, the alleged al-Qaida terrorists were still under the control of the CIA.

The release of 524 pages of the 6,700-page Senate Intelligence Committee report confirms for the first time that the CIA used Guantanamo as a black site — and continued to run the prison that held the alleged 9/11 mastermind Khalid Sheikh Mohammed and 13 other men even as the Pentagon was charged to prosecute them.

It also offers graphic details that the U.S. government has hidden from view in the pretrial hearings of six captives it seeks to execute — about the sexual torture and post traumatic stress disorder of the alleged USS Cole bomber and why a sickly looking accused 9/11 conspirator sits on a pillow at court proceedings.

But it does not resolve whether the spy agency that systematically hid its prized interrogation program from court and congressional scrutiny has entirely ceded control to the U.S. military of the secret facility where the men are now imprisoned. And, if so, when?

“I would find it hard to believe that they let go. Throughout this entire program, the CIA is running from the law at every turn,” says Navy Cmdr. Brian Mizer. He calls the revelation that his client, Abd al Rahim al Nashiri, the accused planner of the USS Cole bombing, “had a tube inserted into his anus” tantamount to rape.

The CIA argues that there was a sound medical reason to use “rectal rehydration” on its captives in 2004 at a secret site that the report suggests was not Guantanamo. In one instance, the CIA “rectally infused” a “food tray” of hummus, pasta with sauce, nuts, and raisins into captive Majid Khan. Now at Guantanamo, he pleaded guilty to being an unwitting courier of cash used to fund a terrorist bombing of a Marriott Hotel in Jakarta, Indonesia, in exchange for the possibility of eventual release.

In the instance of Nashiri, a footnote in the report says, his “rectal feeding” was carried out in a secret site a month after he was spirited away from Guantanamo.

“They weren’t rehydrating him,” says Mizer of Nashiri’s tube insertion, which was described as administered on a table with his feet raised higher than his head. “He was being punished for being on a short-lived hunger strike.”

Defense lawyers, some of whom have seen classified evidence in the USS Cole and 9/11 cases, call this week’s disclosure “the tip of the iceberg.” They want access to the entire report. But they argue that what has been disclosed so far provides fodder for coming legal challenges that ask Guantanamo judges, members of the U.S. military, to either dismiss the case or downgrade it from capital on grounds of outrageous government conduct or pretrial punishment — by the CIA.

Since the 2011 and 2012 arraignments, the death penalty trials have been grappling with how to handle the mostly hidden role of the CIA in the cases — even as the agency tried to muzzle defense lawyers.

In an illustration of this, an agent outside the court remotely cut the sound to the public in January 2013 when an attorney for the alleged 9/11 mastermind began to argue an unclassified motion seeking information about the black sites described in this week’s Senate report.

Now the report shows that Guantanamo had two of those secret CIA black sites — code named Maroon and Indigo — from September 2003 to April 2004 that held at least five detainees.

They were Nashiri, alleged 9/11 deputy Ramzi bin al Shibh, two unidentified captives and a fifth man who would subsequently die mysteriously after being dropped off in Libya during Moammar Gadhafi’s rule — a one-time U.S. military prisoner whose detention, unlike the others, was disclosed to the International Red Cross.

A Libyan, his name was Ali Mohammed al Fakheri, but the CIA called him Ibn Shaykh al Libi, the name he apparently used when captured by Pakistani security forces, according to leaked Guantanamo detainee profiles. He has been identified as a captive who was sent to Egypt for interrogation, and under torture falsely linked Iraqi leader Saddam Hussein to al-Qaida, something he recanted once in CIA custody.

The U.S. would go on to invade Iraq in 2003, with Fakheri’s tortured, recanted statements as justification. In the same month that the first photos of prisoners being abused at Abu Ghraib, Iraq, were broadcast by 60 Minutes, the five were flown from Guantanamo.

Why? As the report explains, there were elaborate internal Bush administration talks, including consultation with the solicitor general about the rights Guantanamo captives might receive once the Supreme Court ruled in a case called Rasul v Bush that gave captives there access to lawyers two months after the CIA cleared out its captives.

Fakheri would be repatriated to Libya sometime later. He died in a Tripoli lockup in 2009 — the Libyans said he committed suicide — days after refusing to talk to a Human Rights Watch investigator who discovered him there.

Fourteen other CIA prisoners, including those who had been held there before, were brought to Guantanamo for eventual trial in September 2006. They “were housed in a separate building from other U.S. military detainees and remained under the operational control of the CIA,” according to the report.

A Pentagon spokesman on Thursday disputed that. “President Bush announced on Sept. 6, 2006,” said Army Lt. Col. Myles Caggins III by email, “that the high-value detainees were at Guantanamo under the custody and control of the Defense Department.”

When not in pretrial hearings, they are segregated at Camp 7, a facility so secret that its location on the base and even its cost of construction are considered classified.

Navy Capt. Tom Gresback said Thursday that Rear Adm. Kyle Cozad, the commander of prison operations, runs “all the detention facilities at Guantanamo Bay” for the U.S. Southern Command, led by Marine Gen. John Kelly.

Grezback would not say if the commanders answer to the CIA, too, or, if not, when that changed. He also specifically declined to answer “due to operational security” whether the U.S. military or CIA recently assigned female soldiers to touch the former black site captives — a controversy that has stirred unrest inside the secret prison.

In 2009, military spokesmen likewise could not say why a sickly looking Saudi 9/11 defendant was sitting on a pillow at the war court. This week, a footnote in the Senate report provided a possible answer.

In 2003 or 2004 CIA captive Mustafa al Hawsawi was diagnosed as suffering “chronic hemorrhoids, an anal fissure and symptomatic rectal prolapse” at an unidentified black site code-named Cobalt, and CIA leadership was alerted to “excessive force” allegations in the use of so-called rectal feedings of detainees.

Hawsawi defense attorney Walter Ruiz said Wednesday that Hawsawi had no health problems before he was captured by the CIA in 2003 and held in a system that, he noted, citing the report, used “sleep deprivation, diet manipulation and found the use of rectal examinations to be effective as a form of behavior control.”

He noted that one portion referenced a need for Hawsawi to get emergency surgery while held in a secret CIA prison, and the host country would not provide it. The attorney, a reserve Navy commander when called to active duty, added that since Hawsawi got to Guantanamo in 2006 he has “gotten no proper medical care since he’s been here in regards to that.”

While the CIA had its secret prisons at Guantanamo, according to the Senate report timeline, first Army Maj. Gen. Geoffrey Miller then Army Brig. Gen. Jay Hood ran the detention operations.

Records maintained by the Miami Herald show that a number of prominent members of Congress were on official visits at Guantanamo while the CIA had its parallel prison operation: Republican Sens. Lindsay Graham and John McCain on Dec. 10, 2003; Democratic Sen. Carl Levin on Feb. 19, 2004; Democratic Rep. Jane Harman with Republican Rep. Ray Lahood on Oct. 13, 2003.

Also visiting was Florida Democratic Sen. Bill Nelson on Dec. 21, 2003. He was the only one to respond to a Herald inquiry and said that he was in the dark about the CIA facility at the time, didn’t inspect it and wasn’t briefed on it. “No. I visited the temporary detention facility at Gitmo,” the senator said Wednesday by email through an aide, Ryan Brown.

The report suggests all of Congress was kept in the dark about the dark site.

“Because the Committee was not informed of the CIA detention site at Guantanamo Bay, Cuba, no member of the Committee was aware that the U.S. Supreme Court decision to grant certiorari in the case of Rasul v. Bush, which related to the habeas corpus rights of detainees at Guantanamo Bay, resulted in the transfer of CIA detainees from the CIA detention facility at Guantanamo Bay to other CIA detention facilities.”

The CIA’s spokesman, Dean Boyd, also declined to say when — if ever — the agency relinquished control of Guantanamo’s most secretive prison.

A footnote in the Senate report says that in early December 2006, three months after the CIA brought its prisoners back to Cuba, then-Director Michael Hayden visited Guantanamo’s “High-Value Detainee Detention Facility” — something not reflected in the prison’s official list of dignitary visits.

And there is no suggestion in the footnote that the CIA had relinquished control of it.

Photo via Wikimedia Commons