Prosecutors in Guantanamo Bay argued on Tuesday that the government should be allowed to continue withholding underlying source documents about CIA torture from defense attorneys representing the alleged mastermind of the USS Cole bombing, even though a judge ruled that the government process of summarizing those documents “produced deletions that could fairly be characterized as self-serving and calculated to avoid embarrassment.”
The arguments came after a 21-month pause in the case of Abd al-Rahim al-Nashiri, a 54-year-old Saudi national who stands accused of engineering Al Qaeda’s assault on the Cole, a U.S. Navy destroyer that was attacked by suicide bombers while refueling off the coast of Aden, Yemen, in 2000. The attack killed 17 American sailors and injured 39 others, and was one of the major acts of terrorism against United States persons overseas in the pre-9/11 era.
In 2002, Nashiri was arrested by authorities in Dubai, United Arab Emirates, and handed over to the CIA. He was moved around a network of secret prisons known as black sites, and is one of three detainees whom the agency has admitted to waterboarding (some of his torture may have occurred under the supervision of current CIA director Gina Haspel at a black site in Thailand). Nashiri was transferred to U.S. military custody in 2006, and now faces the death penalty in the military commissions system.
At the beginning of the proceeding, Nashiri was led in by military guards and embraced each member of his defense team. He wore a white thobe, or robe, with a brown blazer over it, as well as headphones to let him listen to the argument in Arabic translation. Responding to the judge’s questions, Nashiri’s English was limited to phrases like “Yes,” “Yes I understand,” and “No.” For longer sentences, he spoke in Arabic and his remarks were translated for the court.
The case has stalled for numerous procedural reasons, including alleged monitoring of confidential communications between defense attorneys and Nashiri. One key issue has always been whether the war court would allow Nashiri’s defense lawyers full access to CIA records about his interrogation.
Nashiri’s defense team has argued that the details of his torture are essential to defending him against capital charges by enabling his lawyers to show how he was treated, demonstrate that any confessions were coerced, and cross-examine those responsible for his interrogations. But because his torture took place across a network of secret black sites, the government is fighting to protect the agency’s secrecy.
The 500-page declassified summary of the Senate Intelligence Committee report on torture documents how, in addition to being waterboarded, Nashiri was shackled and subjected to experimental stress positions that left him with bruises and cuts. He was also subjected to interrogation methods that were not authorized by the CIA at the time, including a mock execution involving a pistol and a cordless drill.
During his time in CIA custody, Nashiri launched a “short-lived hunger strike that resulted in the CIA force feeding him rectally,” according to the report, which human rights groups have said is a form of sexual assault.
Eight years after the current charges were filed, Nashiri’s case is at a point of reset. Earlier this year, the U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled that the former judge in the case, Air Force Col. Vance Spath, had created the appearance of a significant conflict of interest by applying for a job with the Justice Department under Jeff Sessions and negotiating its terms while hearing the case, which involved Justice Department prosecutors. The appellate court wiped out more than three years of the case, including hundreds of court motions.
The unanimous ruling created a blank slate, allowing the defense to revisit terms of discovery with a new military judge, Army Col. Lanny J. Acosta Jr., who opened a new round of public hearings in the case this month. Previous military judges have allowed the government to withhold classified documents about Nashiri’s interrogation and instead produce still classified “summaries” that are turned over to defense counsel. Nashiri’s defense team includes both military and civilian lawyers, all of whom have top secret security clearances.
But according to Nashiri’s lawyers, CIA cables obtained under the Freedom of Information Act and released earlier this year by the National Security Archive at George Washington University differed significantly from the government’s “summaries.”
At the request of the defense, Acosta reviewed the discrepancies, ruling last month that comparing the publicly released cables to the summaries produced during the discovery process “has, at least on these occasions,” shown that the government appears to have left out some material to “avoid embarrassment” and made choices that could be called “self-serving.” “[T]he comparison undermines any contention the redactions are narrowly tailored to a legitimate need to protect national security,” Acosta wrote.
Appearing before the commissions on Tuesday, Anthony Natale, a new defense lawyer for Nashiri, argued that the judge should order a new procedure for expedited discovery, in which the government turns over underlying source documents to the defense along with summaries so that they can negotiate differences, involving the judge if there is a dispute. Natale said the process would expedite discovery of the thousands of pages of documents in the case and allow the defense to get the facts it needs to confront Nashiri’s accusers.
If the government does not change its procedure, Natale told the judge, the defense would have to challenge every summary as potentially inaccurate, slowing down the case. “We know that the summaries that have been previously provided weren’t even close,” Natale said. “But if … we have to file objections to every summary, we will.”
The defense alleged on Tuesday that the government frequently used inaccurate terminology in its summaries, offering as an example that the government referred to Nashiri’s torture sessions as a “custodial interview,” a term describing a standard type of law enforcement interrogation. They also alleged that numerous inaccurate dates or date ranges appeared in the summaries, potentially making it difficult to match specific interrogations with the accounts the government presented.
Brig. Gen. Mark Martins, the chief prosecutor for the Office of Military Commissions, disputed that the summaries were inadequate. Taking more than an hour to present a 58-page PowerPoint, he argued that just because the defense counsel had security clearances, they did not automatically have a “need to know” the details contained in classified CIA cables, and that the executive branch was better positioned than a court to determine what information could compromise national security.
Martins also called Natale’s promise to challenge the summaries a “version of a graymail threat,” referring to a legal strategy to derail a case by threatening to act in ways that expose classified information.
In death penalty cases, defendants are entitled to multiple lawyers, one of whom must be “learned counsel” — meaning they have extensive knowledge of death penalty law and experience handling such cases. Nashiri’s previous learned counsel, Richard Kammen, told the court he would retire practicing law, so Nashiri had to approve the appointment of Natale as his new learned counsel. Nashiri did not seem overly pleased by the change.
“If Mr. Kammen cannot come back, then I will be forced to approve Mr. Tony,” he told the court, referring to Natale.
On Tuesday morning, the court allowed attorneys from both sides to question the judge about potential conflicts of interest. Natale told Acosta that Nashiri wanted him to ask whether, because the judge is a member of the military, a “pronouncement” or “tweet” from Trump could affect the case. Acosta responded by stressing the independence of the judiciary. Natale also told the court that Nashiri has not asked for prayer breaks in the proceedings.
In the past few years, Nashiri’s case has put a spotlight on the military commissions process, leading many to question whether it can overcome endless procedural hurdles and handle cases against key Guantanamo detainees like the 9/11 attackers.