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Sunday, December 4, 2016

By Carol Rosenberg, The Miami Herald

GUANTANAMO BAY NAVAL BASE, Cuba — Lawyers on both sides of the USS Cole bombing case argued over the Senate Intelligence Committee’s “Torture Report” on Wednesday.

Defense lawyers told the war court judge that to prepare for the first death-penalty trial by military tribunal at Guantanamo they need the entire document, which describes their client’s treatment while in CIA custody.

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 Senate Select Committee on Intelligence report on the CIA’s black site program to decide what portions defense lawyers might be entitled see.

The argument came in a pivotal three-day hearing in advance of the 2015 death-penalty tribunal of Saudi prisoner Abd al-Rahim al-Nashiri, 49, that’s focusing on how much material about the captive’s four-year odyssey through the CIA’s black sites his lawyers might see.

Last month, the judge ordered the U.S. government to give al-Nashiri’s attorneys, not the public, much of it — names, dates, places. But the case prosecutors are arguing that the judge, Army Colonel James L. Pohl, misunderstood the scope of his authority in presiding at the national security trial, and does not have the power to give that information to defense lawyers. They want him to rescind his order.

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, Senator 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 Commander 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 limited executive summary to have undergone a declassification review sometime this summer.

For al-Nashiri, Army Major 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 going to get it together and disclose some portion of this report.”

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.

AFP Photo/Chantal Valery