In al Nashiri, Judge Pohl orders disclosure of details of CIA’s “black sites” to the defense

To say it has been an eventful week for the military commissions in Guantanamo might be an understatement.  As Ruchi has covered each morning this week in the Early Edition, the pre-trial motions proceedings in KSM et al. (also known as the “9/11 case”) were halted this week upon revelations that two FBI agents questioned a contract security officer on one of the defense teams and sought to enlist him as a secret informant. Wells Bennett over at Lawfare has been following the proceedings closely each day, and I highly recommend his coverage from the week.  And as we learned earlier today, it looks like the proceedings in the 9/11 case have been adjourned until June.

If that weren’t enough to keep things interesting, this morning Carol Rosenberg of the Miami Herald is reporting that in the al-Nashiri case, Judge Pohl has ordered the U.S. government to give the defense lawyers the details, including the names, dates, and locations, of the CIA’s secret overseas detention and interrogation of the defendant, who is accused of planning the bombing of the U.S.S. Cole in 2000.  That order, which was reportedly issued on Monday, remains sealed, but Carol provides further details:

“Army Col. James L. Pohl issued the five-page order Monday. It was sealed as document 120C on the war court website Thursday morning and, according to those who’ve read it, orders the agency to provide a chronology of the overseas odyssey of Abd al Rahim al Nashiri, 49, from his capture in Dubai in 2002 to his arrival at Guantánamo four years later.

The order sets the stage for a showdown between the CIA and a military judge, if the agency refuses to turn over the information to the prosecution for the defense teams. The order comes while the CIA fights a bitter, public battle with the Senate on its black site torture investigation.

The judge’s order instructs prosecutors to provide nine categories of closely guarded classified CIA information to the lawyers — including the names of agents, interrogators and medical personnel who worked at the so-called black sites. The order covers “locations, personnel and communications” as well as cables between the black sites and headquarters that sought and approved so-called enhanced interrogation techniques, the two sources said.

It does not, however, order the government to turn over Office of Legal Counsel memos that both blessed and defined the so-called Torture Program that sent CIA captives to secret interrogations across the world after the Sept. 11, 2001 attacks — out of reach of International Committee of the Red Cross delegates.”

According to one person who has read the order, but is not a part of the al Nashiri case, “It’s a nuclear bomb that may shut down the case.”  This source also predicted the prosecution will likely make an interlocutory appeal, choosing to ask the military commissions appeals court to overrule the order, rather than release the information.

I am planning to attend next week’s al-Nashiri pre-trial hearings via the CCTV feed at Fort Meade — assuming, of course, that this recent order doesn’t gum up next week’s proceedings.  Regardless, we’ll be following this development closely and provide updates and analysis accordingly. 

About the Author(s)

Thomas Earnest

Former Managing Editor of Just Security (2013-14) Follow him on Twitter (@thomasdearnest).