Judge Pohl’s order requiring disclosure of details of CIA’s “black sites” now unclassified

As I mentioned last week, in the al Nashiri military commission case, Judge Pohl has issued an order requiring that the prosecution turn over to the defense team the details — including the names, dates, and locations — of the CIA’s secret overseas detention and interrogation of al Nashiri.  Today, that order, AE 120C (full text), was unclassified and released publicly.  In the order, Judge Pohl says that the prosecution has the

“obligation to provide discovery broadly and liberally, especially in light of the capital referral of the charges against the Accused and the Defense’s ethical duty to conduct pre-trial investigation in order to develop the full range of exculpatory, mitigation and, extenuation evidence.”

The order’s scope is expansive, with the disclosure requirements copied below. Note in particular that the order includes, as Carol Rosenberg of the Miami Herald points out, the black site interrogations of 9/11 defendant Walid bin Attash:

The Prosecution will provide the Defense the following discovery information:

a. A chronology identifying where the Accused was held in detention between the date of his capture to the date he arrived at Guantanamo Bay, Cuba in September 2006;

b. A description of how the Accused was transported between the various locations including how he was restrained and how he was clothed;

c. All records, photographs, videos and summaries the Government of the United States has in its possession which document the condition of the Accused’s confinement at each location, and the Accused’s conditions during each movement between the various locations;

d. The identities of medical personnel (examining and treating physicians, psychologist, psychiatrists, mental health professionals, dentists, etc.), guard force personnel, and interrogators, whether employees of the United States Government or employees of a contractor hired by the United States Government, who had direct and substantial contact with the Accused at each location and participated in the transport of the Accused between the various locations. This includes individuals described in paragraph lOa and d of the Defense Request for Discovery dated 9 August 2012. (Attachment A of AE 120);

e. Copies of the standard operating procedmes, policies, or guidelines on handling, moving, transpotting, treating, interrogating, etc, high value detainees at and between the various facilities identified in paragraph Sa. This includes documents described in paragraphs 1S, 17, 18, 21a, and 22, of the Defense Request for Discovery dated 9 August 2012. (Attachment A of AE 120);

f. The employment records of individuals identified in paragraph Sd limited to those documents in the file memorializing adverse action and/or positive recognition in connection with performance of duties at a facility identified in paragraph Sa above or in transporting the Accused between the various facilities; g. The records of training in preparation for the performance of duties of the individuals identified in paragraph Sd above at the various fac ilities or during transp01t of the Accused. This includes documents described in paragraph 24 of the Defense Request for Discovery dated 9 August 2012. (Attachment A of AE 120);

h. All statements obtained from interrogators, summaries of interrogations, rep01ts produced from interrogations, interrogations logs, and interrogator notes of interrogations of the Accused and all co-conspirators identified in Appendix C of the Charge Sheet dated 15 September 2011;

i. Un-redacted copies of requests with any accompanying justifications and legal reviews of same to employ Enhanced Interrogation Techniques on the Accused and all co-conspirators identified in Appendix C of the Charge Sheet dated 15 September 2011. This includes documents described in paragraphs 48, 49, and 51 of the Defense Request for Discovery dated 9 August 2012 (Attachment A of AE 120) with “particular detainees” being the Accused and all co-conspirators identified in Appendix C of the Charge Sheet dated 15 September 2011.;

j. Un-redacted copies of documents memorializing decisions (approving or disapproving), with any additional guidance, on requests identified in para 5i to employ Enhanced Interrogation Techniques on the Accused and all co-conspirators identified in Appendix C of the Charge Sheet dated 15 September 2011 . This includes documents described in paragraph 48, 49, and 51 of the Defense Request for Discovery dated 9 August 2012 (Attachment A of AE 120), with “particular detainees” being the Accused and all co-conspirators identified in Appendix C of the Charge Sheet dated 15 September 2011.

 

About the Author(s)

Thomas Earnest

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