The stories you want. The opinions that matter.
No, thanks
Tag: uss cole
Guantanamo Lawyers Spar Over CIA ‘Black Site’ Disclosures

Guantanamo Lawyers Spar Over CIA ‘Black Site’ Disclosures

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.

Separately Wednesday, defense lawyers asked Pohl to get them a copy of the entire Senate Intelligence Committee’s “Torture Report.” It details not only Nashiri’s treatment in CIA custody but describes interrogations of other captives that might implicate their client.

Prosecutors replied that the judge, whose job was created by Congress, has no authority to order the Senate to hand over a copy of the report. The prosecutors also said that they haven’t obtained or read the report to decide what portions defense lawyers might be entitled to see.

An executive summary — 480 pages — of the Senate report is undergoing a declassification review, at the request of the White House. But defense lawyers argue, separately from the judge’s order up for reconsideration, that they want all 6,600-plus pages of it, notably analysis, to evaluate what their client told them about his torture in U.S. custody between his capture in Dubai in 2002 and arrival at Guantanamo for trial in September 2006.

In a letter to President Barack Obama on April 7, Sen. Dianne Feinstein (D-CA) described the report as “the most comprehensive accounting of the CIA’s Detention and Interrogation Program, and I believe it should be viewed within the U.S. Government as the authoritative report on the CIA’s actions.”

But the judge questioned aloud in court whether the report constituted evidence that could be admissible at trial, versus analysis. Lead prosecutor Navy Cmdr. Andrea Lockhart said neither the prosecution nor the defense lawyers could know the answer to that because neither side had read it and her team had not evaluated whether it was material or relevant at trial.

Lockhart left unclear, in direct reply to the judge’s question, whether case prosecutors had actually asked for a copy of the report. She said only that the prosecution expected the executive summary to have undergone a declassification review sometime this summer.

For Nashiri, Army Maj. Tom Hurley noted that there is vigorous debate inside government over what portion of the Senate summary might be released. “The cruel part of the cruel joke that is the government’s response is that it suggests this belief that the United States government itself is goin g to get it together and disclose some portion of this report.”

Nashiri is accused of orchestrating al-Qaida’s suicide bombing of the U.S. Navy warship at the port of Aden, Yemen. Two men motored an explosives-packed skiff alongside the Cole and blew themselves up.

AFP Photo/Chantal Valery

Guantanamo War Court Opens In Secret Session

Guantanamo War Court Opens In Secret Session

By Carol Rosenberg, The Miami Herald

GUANTANAMO BAY NAVY BASE, Cuba — The judge in the USS Cole death-penalty tribunal launched a three-day pretrial hearing Wednesday with a closed session.

There was no explanation of the unusual closed hearing. In the past, Army Col. James L. Pohl, the judge, first held an open session to explain in advance the nature of the proceedings with prosecutors and defense attorneys that would exclude the public and alleged al-Qaida bomber, Abd al-Rahim al-Nashiri, 49, of Saudi Arabia.

This time, the attorneys, staff and trial judiciary arrived on a flight from the Washington, D.C., area Tuesday afternoon and started the hearing at around 9 a.m. without explanation.

According to the judge’s docket, a major topic expected this week was a bid by the prosecution to get the judge to reverse himself on an April 14 ruling. In it, the judge ordered the U.S. government to give al-Nashiri’s attorneys, in classified fashion, details of the secret CIA prison network where he was waterboarded and held out of reach of the International Red Cross and legal counsel from his capture in Dubai in 2002 until his arrival at Guantanamo in September 2006.

It is not known that, even if the judge does not reverse himself, whether the CIA will comply.

The order instructs prosecutors to provide al-Nashiri’s lawyers — not the public — with some of the agency’s most closely guarded secrets — including a place-by-place chronology of al-Nashiri’s four-year odyssey through the so-called “black sites,” as well as the names of interrogators, health professionals and guards who worked there.

Al-Nashiri is accused of orchestrating al-Qaida’s Oct. 12, 2000 suicide bombing of the U.S. Navy warship at the port of Aden, Yemen. Seventeen American sailors died and dozens more were injured after two men motored an explosives-packed skiff alongside the Cole and blew themselves up.

The session began a day after the chief prosecutor, Army Brig. Gen. Mark Martins, issued a statement that calculated the amount of closed sessions in the case at “5 percent of the proceedings.” In the past, the court has weeks after the closed session released a partial transcript of the closed hearings that blacks out secret information but gives the public a general sense of what was discussed.

AFP Photo/Chantal Valery

Guantanamo Judge To CIA: Disclose ‘Black Site’ Details To USS Cole Defense Lawyers

Guantanamo Judge To CIA: Disclose ‘Black Site’ Details To USS Cole Defense Lawyers

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

USS Cole Hearing Halted At Guantanamo

USS Cole Hearing Halted At Guantanamo

By Carol Rosenberg, The Miami Herald

GUANTANAMO BAY NAVY BASE, Cuba — An Army judge abruptly recessed the first military commission session of the year Monday because the alleged architect of al-Qaida’s 2000 USS Cole bombing may want to fire his lawyer.

One-time waterboarded Saudi prisoner Abd al-Rahim al-Nashiri, 49, is scheduled to face trial in September. The judge, Army Col. James L. Pohl, had scheduled eight days of hearings to address defense and prosecution representation questions, efforts by al-Nashiri’s lawyers to narrow the case — as well as postponing the trial until at least February 2015.

But al-Nashiri’s death-penalty defender, Rick Kammen, a civilian, told the judge moments into the hearing that the prisoner wanted to fire him. He asked for two days to work with the accused on preserving the relationship. Pohl agreed.

He recessed until Wednesday and said, if the hearings go forward, he’ll hold Saturday and Sunday sessions to make up time.

Al-Nashiri, who could be executed if convicted as the mastermind of the suicide bombing of the $1 billion warship off Yemen in October 2000, sat silently in the courtroom for the 10-minute hearing.

The case prosecutor, Navy Commander Andrea Lockhart, asked the judge to question al-Nashiri directly on the issue. Pohl declined.

There was no immediate word from family members of the 17 American service members who died in the attack. They were brought to the base on Sunday to watch the proceedings.

Parents of some of the slain sailors make the pilgrimage to this remote base in southeast Cuba for each hearing, as guests of the prosecution, and have expressed anger at what they see as defense stalling tactics.

Defense lawyers say the death penalty and secret nature of the proceedings have prolonged this phase. They also cite al-Nashiri’s waterboarding and other “torture” in U.S. custody, which has left him suffering post traumatic stress disorder.

Under military commissions rules, an accused terrorist facing a possible death penalty must have a learned defense counsel on his team. Only Kammen currently qualifies in that role although al-Nashiri also had three military defense lawyers at his table for Monday’s hearing.

Two were new to the team: Navy Commander Brian Mizer, who had previously defended Osama bin Laden’s driver, Salim Hamdan, at a military commissions trial, and Army Major Tom Hurley, who had previously been part of Army Pfc. Chelsea Manning’s court-martial defense team.

Until Monday, the Saudi prisoner appeared to have a working relationship with Kammen, a seasoned death-penalty defense lawyer from Indianapolis. The two met in 2008, and al-Nashiri accepted him to his team. Navy Commander Stephen Reyes, Nashiri’s first Pentagon-approved military lawyer, brought Kammen to the team and recently left for studies at Harvard.

Another civilian lawyer who has represented al-Nashiri since Mary 2008, Nancy Hollander of Albuquerque, New Mexico, was at the court Monday as well to protest to the judge that the prison had not let her see the man for a year. But Pohl recessed before that issue was heard.

AFP Photo/Chantal Valery