Jason Leopold / Al Jazeera America & Sarah Mimms / National Journal – 2014-04-02 00:30:13
Senate CIA Torture Report Could Throw Gitmo Hearings into Chaos
Jason Leopold / Al Jazeera America
[Military commissions are] mainly a vehicle to have what will look like trials but will keep whatever evidence of torture the judge ultimately allows secret from or sanitized to the public.
— Richard Kammen, Nashiri’s defense attorney
Now that the Senate Intelligence Committee appears set to vote on releasing its long-awaited 6,300-page, $50 million study, the defense attorneys will finally get the opportunity to talk openly at the military commissions about torture.
(April 1, 2014) — The possible declassification and release of a Senate report into the CIA’s detention and interrogation program — begun in the wake of the 9/11 terrorist attacks — could have a huge impact on the controversial military tribunals happening at Guantanamo Bay, experts and lawyers believe.
The proceedings have been moving at a snail’s pace at the US-held military base on the island of Cuba, amid widespread condemnation that they are being held in a legal limbo and outside the US criminal justice system.
Details surrounding the CIA’s activities have been one of the most contentious issues concerning the commissions at Guantanamo, where the alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and his co-defendants are on trial. Their alleged treatment while in CIA custody has been a key stumbling block in the hearings’ progress. The same goes for the man alleged to be behind the USS Cole bombing, Abd al-Rahim al-Nashiri, another former CIA captive.
In both cases, there have been dozens of delays — mainly due to the fact that the attorneys have been battling military prosecutors over access to classified information about the CIA interrogation program that the attorneys want to use as evidence. Both cases have been dragging on for two years and are still in the pretrial evidentiary phase.
But now that the Senate Intelligence Committee appears set to vote on releasing its long-awaited 6,300-page, $50 million study — or at least some portion of it — the defense attorneys will finally get the opportunity to talk openly at the military commissions about torture. That could prove disastrous for military prosecutors.
According to defense attorneys and human rights observers who have been monitoring the proceedings, it might also derail the government’s attempts to convince a jury that the detainees, if convicted, deserve to be executed.
“The US government has gone to great lengths to classify evidence of crimes — crimes committed by US actors,” said Army Maj. Jason Wright, one of Mohammed’s military defense attorneys. “Were this information in this Senate report to be revealed . . . it would completely gut the classification architecture currently in place before the commissions.”
The panel is expected to vote April 3, and it is widely believed the panel will approve release of its 400-page executive summary. If that happens, Wright said, he anticipates petitioning the military court to amend the protective order that treats all information about the CIA torture program as classified.
The report is likely to contain reams of information that has not yet come to light. Intelligence Committee Chairwoman Sen. Dianne Feinstein has said the report “includes details of each detainee in CIA custody, the conditions under which they were detained, how they were interrogated, the intelligence they actually provided and the accuracy — or inaccuracy — of CIA descriptions about the program to the White House, Department of Justice, Congress and others.”
Wright said that in addition to seeking a change to the protective order, he would file discovery motions to gain access to the 6.2 million pages of documents the Senate had. Such a move would lead to further legal wrangling and delay the start of the trial, which the government hopes will get underway in September.
“We have an absolute right to review that and have it produced in discovery,” Wright said.
Richard Kammen, al-Nashiri’s civilian defense attorney, meanwhile, has already filed a motion with the military court to obtain a complete, unredacted copy of the Senate Intelligence Committee’s report.
The motion, submitted in September prior to the revelations that have surfaced about infighting between the CIA and Senate committee investigators, said the report “will be central to the accused’s defense on the merits, in impeaching the credibility of the evidence against him and in mitigation of the death sentence the government is seeking to impose.”
If the entire report were declassified by the Intelligence Committee, it “would be huge because it would really eliminate the â€˜need’ for military commissions, which are in my view mainly a vehicle to have what will look like trials but will keep whatever evidence of torture the judge ultimately allows secret from or sanitized to the public,” Kammen said.
But not everyone expects the report to be released in great detail. Air Force Capt. Michael Schwartz, the attorney for alleged 9/11 co-conspirator Walid bin Attash, doesn’t believe the Senate committee’s report will ever see the light of day. If it is released, he said it will be highly redacted, rendering it useless to the public and Attash’s defense team.
“This whole military commissions system is designed to make sure this information is never known to the public,” Schwartz said. “No one in my office is naive enough to think this report will come out in any unredacted form.
“Certainly that report contains a lot of mitigating information that would be relevant to the defense of this case. But I don’t believe for a second that we will see anything in that report that actually sheds light on the crimes committed by the CIA against our clients between 2003 and 2006.”
Air Force Col. Morris Davis, the former chief prosecutor at Guantanamo and a staunch critic of the military commissions, doesn’t believe the Senate committee’s report “is legally relevant” to the military commission trial of Mohammed and the other high-value detainees. But he does believe it will force the hearings more into the public.
“Where I do think it will have an impact is in the assessment of whether those legal relevance proceedings take place in open court or in secret closed sessions,” he said. “The report is likely to officially reinforce and amplify what the public already knows about this regrettable chapter in our history. It should further undercut the government’s claim that all this absolutely must stay hidden behind closed doors or else cataclysmic things will happen.”
Army. Lt. Col. Todd Breasseale, a Pentagon spokesman who deals with detainee matters at Guantanamo, declined to discuss the Senate report or how its release may affect the commissions.
“I can’t imagine a world where competent counsel — be they from the government or defense — would announce in advance, any strategy they might pursue or make predictions on how any given issue might affect the progress of their case,” Breasseale said.
Daphne Eviatar, a lawyer for Human Rights First who has closely observed and written about the military commission proceedings, said whether the Senate’s report is a game changer will ultimately depend on what is declassified. Perhaps details of the interrogations will be released, or they may be heavily redacted.
“Either way, you can be sure the defense lawyers will try to reopen this issue, and the government will fight it, and the case will get bogged down once again in months of argument in pretrial hearings that are already taking forever,” she said.
John McCain: Classified Senate Report on Torture ‘Chilling’
Sarah Mimms / National Journal
(April 1, 2014) — The Senate Intelligence Committee’s report on interrogation techniques employed by the CIA in the wake of the Sept. 11 attacks includes a number of “chilling” stories of the use of torture by American officials that have not yet been released to the public, Sen. John McCain said Tuesday.
The existence of the report and some of its contents, including that coercive techniques such as waterboarding did not lead to the capture of Osama bin Laden, were first reported by The Washington Poston Monday.
The 6,300-page report is classified, but the Intelligence Committee, headed by Chairwoman Dianne Feinstein, will push Thursday for the Obama administration to declassify a 400-page executive summary, The Post reported.
Asked about the report, McCain said it offers further evidence of the inefficiencies of using torture on American enemies. “When you torture someone they will say anything you want to hear to make the pain stop. So I never, ever believed this bologna that, well, because of waterboarding they got information,” he said.
McCain said he has not read the report himself, but has “heard a lot about it.” He declined to comment on anything that was not included in the original Washington Post report on the record, but added: “There’s a couple stories [in the report] that are so chilling that I can’t repeat them right now.”
McCain also elaborated on an event that was reported Monday by The Post, noting that officials waterboarding a terror suspect reported to CIA headquarters that they had “gotten everything we can out of the guy.”
“The message came back, ‘Waterboard him some more.’ That is unconscionable,” McCain said.
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