WASHINGTON (CN) – At the request of the man charged with masterminding the 2000 bombing of USS Cole, a federal judge on Wednesday ordered a copy of the Senate torture report to be kept under seal.
The government will also have to give the U.S. District Court a copy of the report that the CIA prepared between 2012 and 2014 in response to the 6,700-page Senate Intelligence Committee reckoning of the CIA’s detention and interrogation program. U.S. District Judge Royce Lamberth called for related documents as well.
“Respondents shall preserve and maintain all evidence, documents and information, without limitation, now or ever in respondents’ possession, custody or control, relating to the torture, mistreatment, and/or abuse of detainees held in the custody of the Executive Branch since September 11, 2001,” the 2-page order states.
Attorneys for Abd al-Rahim al-Nashiri, whom the U.S. has charged with war crimes in the Guantanamo military commissions system, asked the court to preserve the documents for future use in his ongoing habeas petition, fearing existing copies might be destroyed.
“This request was not made lightly,” al-Nashiri’s Dec. 8 brief states. “Petitioner nevertheless is compelled to request this relief because of the real risk that this specific record will be destroyed before petitioner can litigate the merits of any number of claims which are available to him via habeas corpus. Similar evidence, documenting petitioner’s illegal torture at the hands of the government, has already been improperly destroyed and the requested preservation order does nothing more than prevent this from happening again.”
Destruction is exactly what forces in the incoming administration of President-elect Donald Trump and in Congress are forecasting, said Richard Kammen, an attorney for al-Nashiri with Kammen & Moudy.
“Not just bury it but destroy it,” Kammen said. “And so given the fact that for our client, the report is hugely, hugely important – because it describes the torture that was inflicted on him – that would’ve been a disaster.”
Al-Nashiri stands accused of orchestrating the bombing off the coast of Yemen of the naval vessel the USS Cole, killing 17 American sailors and injured 39. Tortured by the CIA, al-Nashiri is among the high-value detainees being held in law-of-war detention at the Guantanamo Naval Base in Cuba.
A 2004 CIA document describes how Nashiri was subjected to water-boarding, put in stress positions, had an unloaded semi-automatic handgun racked near his head, and a power drill revved near him while he was hooded and naked.
Al-Nashiri faces the death penalty if the military commissions convict him. Though the case is bogged down in pretrial hearings, with no trial date yet in sight, the Senate torture report could provide mitigating evidence for an argument against executing al-Nashiri.
“Obviously we’re very, very pleased that Judge Lamberth saw the merits of our request,” Kammen said.
The Dec. 28 ruling comes about two weeks after the White House refused to declassify the full Senate torture report, but said it would archive a copy of the report for 12 years in President Barack Obama’s official records at his presidential library. The report is not subject to the Freedom of Information Act or declassification during that time.
But Kammen said Lamberth’s ruling means the report could be made public sooner rather than later.
President Obama’s move to archive the report “was a start,” Kammen noted. But civilian courts use different standards than the declassification process through the presidential library system, he added.
“So clearly there’s a greater possibility it will be available at some point in the litigation to us,” Kammen said.
“Frankly, if there are going to be military commissions trials, publication of the entire report is the only way in which those proceedings will begin to be fair,” Kammen added.
Evidence rules in the military commissions require the prosecution to turn over evidence favorable to the accused – but classified evidence is given to the military judge rather than directly to the defense attorneys. The military judge, who has the final say on what defense attorneys will see, can also approve substitutions or summaries of the original classified evidence.
Defense attorneys say anything less than the original evidence – in this case the full version of the torture report, is inadequate. On the other hand, the prosecution, led by Army Brig. Gen. Mark Martins, says the rules governing the military commissions are fair and comply with the Constitution. Martins has said before that the defense attorneys are not entitled to see everything they would like to.
The military commissions previously rejected a request to preserve a copy of the Senate torture report, Kammen noted.
“It’s only the civilian courts that have shown any particular interest or fidelity in the truth,” Kammen said. “The military courts tend to be very cavalier and very deferential to the prosecution, which of course is part of the problem.”
Because the military commissions denied a request to preserve the report, “our only avenue was through the habeas proceedings,” Kammen said.