From Tragedy to Farce—Redux

I noted in a prior post the quoted title from a Miami Herald editorial on April 19, when it wrote about “a series of jaw-dropping revelations and rulings” from Guantánamo’s military commissions. In that post I described how, as reported by the paper’s Carol Rosenberg, the FBI had, according to a lawyers for a defendant in the 9/11 case, tried “to turn a defense team security officer into a secret informant.” Then I promised to write soon about Judge Pohl’s order directed to the CIA, which—so far—the agency has refused to say whether it will honor.

It has long been known that Nashiri—the alleged author of the lethal attack in 2000 on the USS Cole, among the war crimes charged against him—was captured and spirited away by the CIA to secret black sites beginning in 2002. There he was interrogated and tortured, until he was transferred to Guantánamo in 2006, where he remains to this day. Only fragments about Nashiri’s torture are publicly known. Not much more than that he was waterboarded, and interrogated at the point of a revving power drill (while hooded and naked) and a racked pistol near his head. Most of the rest remains highly classified.

Yet his torture will have paramount importance during his trial in at least two regards. The Military Commissions Act of 2009 (unlike its 2006 predecessor and Bush’s 2002 Military Order governing the first version of the military commissions, which the U.S. Supreme Court found unlawful), precludes from admission into evidence any statement produced by torture or by cruel, inhuman or degrading treatment. And Brigadier General Mark Martins, the chief prosecutor, has declared that the government will not offer any such evidence. But Martins already has staked out a major loophole to this vow, whereby the prosecution may use statements originally produced by torture. A statement may become voluntary, he has argued, after the passage of time from torture, where the accused is questioned in a different location, perhaps by other interrogators. “The point that I reject and the law rejects,” he said, “is that there can be no voluntary statements following an instance of coercion.”

Further, if Nashiri is found guilty, his torture would become relevant to the sentence to be rendered, whether death or otherwise. That is, using his lead counsel’s terminology, evidence of torture would be adduced to seek mitigation of Nashiri’s punishment.

Hence, in one sense it’s no surprise that on April 14, 2014, Judge Pohl—after an in-chambers argument on account of the sensitivity of the matters discussed—directed that the prosecution provide (among other things):

1. A chronology identifying where Nashiri was detained (think black sites) from the time of his capture until his arrival at Guantánamo in September 2006;

2. All documents showing the conditions of Nashiri’s confinement, and Nashiri’s condition when transferred to other locations;

3. The identities of medical personnel and interrogators having direct and substantial contact with Nashiri;

4. SOPs and guidelines on handling, transporting, and interrogating high value detainees at or between various facilities (again, think black sites);

5. All statements from interrogators, summaries of interrogations, interrogation logs and interrogator notes of interrogations of Nashiri and his alleged co-conspirators;

6. Un-redacted copies of documents memorializing decisions on requests to employ Enhanced Interrogation Techniques on the accused and all alleged co-conspirators.

Since the CIA undoubtedly is the repository for many if not all of these documents—after all, the agency operated the black sites—newspaper headlines have proclaimed that the order was directed to the CIA, not to the Prosecution in Nashiri’s case. See, for example, the April 17 article by the Miami Herald’s Carol Rosenberg, titled “Guantánamo judge to CIA: Disclose ‘black site’ details to USS Cole defense lawyers,” which points out that “the order sets the stage for a showdown between the CIA and a military judge,” should the agency refuse to turn the documents over. One person who had read the order before its release told Rosenberg: “It’s a nuclear bomb that may shut down the case,” because it covers so many of the agency’s closely guarded secrets. Lead defense counsel Richard Kammen stated: “We note that the CIA has lied to at least three federal courts, the 9/11 Commission and, according to the newspapers, Congress. This demonstrated history of lying clearly obligates us to do a full investigation.”

Defense attorneys in the 9/11 case, upon learning of Pohl’s order (he also presides over that case), have sought the same information about their clients.

Rosenberg reported further on April 22, that the CIA had declined to comment on whether the agency would comply with Pohl’s order.

Since, in effect, Pohl is ordering production of the CIA’s family jewels, my bet holds that—at the least—the agency will seek an interlocutory appeal of the order. If this effort fails, conversely, I wouldn’t bet that the agency will comply with the order.

Charles R. Church

April 26, 2014

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