Guantánamo judge doesn’t relent on CIA ‘black site’ order

[jimmy olsen]

Good, let the truth be revealed

http://www.miamiherald.com/2014/06/25/4201515/guantanamo-judge-doesnt-relent.html#storylink=cpy

Guantánamo judge doesn't relent on CIA 'black site' order

Defense counsel memo summarizing the judge's order, obtained by the Herald, says U.S. still must reveal many details of secret, overseas prison network.

By Carol Rosenberg
[email protected]

A military judge isn't backing down from his order to the U.S. government to give defense lawyers details of the accused USS Cole bomber's odyssey through the CIA's secret prisons, but may let prosecutors shield the identities of some agents, according to people who have seen a secret Guantánamo war court order.

Army Col. James L. Pohl, the judge, issued an 11-page ruling Tuesday after a three-hour closed hearing May 29 at Guantánamo with defense and prosecution attorneys and another meeting a day later just with prosecutors.

In the order, according to three people who have read it, the judge retains the thrust of an April 14 discovery order requiring the U.S. government to give prosecutors, in classified fashion, precise details — names, dates, nations — of Saudi prisoner Abd al Rahim al Nashiri's four years of interrogation and detention in CIA custody.

Pohl's ruling was sent to lawyers at 3:30 p.m. Tuesday, sources said. Thursday, the war court website disclosed its existence, under seal for up to 15 days while intelligence agencies review it to black out secret information, with this lengthy notation:

"Military judge order regarding government motion to reconsider AE120C in part so the comission may take into account declassification efforts underway at prior prosecution request, clarify the discovery standard the commission is applying, and safeguard national security while ensuring a fair trial."

At the Pentagon, Army Lt. Col. Myles Caggins III said the prosecution "is not inclined to appeal the revised order" to the U.S. Court of Military Commission Review. An appeal could stall progress in the death-penalty tribunal of Nashiri as the alleged architect of al-Qaida's bombing of the USS Cole off Yemen in October 2000.

"They are continuing to study the ruling," he said, adding that the prosecution believes the judge provided enough relief in his revision to go forward.

The discovery issue is seen as a bellwether for the court's other death-penalty case.

Pohl is also presiding at the 9/11 trial of five men accused of conspiring in the terrorist attacks that killed almost 3,000 people. There, the prosecution is similarly seeking to shield from defense lawyers the details of the so-called "black site" program that waterboarded the alleged mastermind Khalid Sheik Mohammed 183 times and denied its captives access to attorneys and visits by the International Red Cross.

At issue is not whether the public can know what happened in the secret CIA prisons — it can't, because the information is classified — but whether defense lawyers can learn some of the agency's deepest secrets because they, like the prosecutors, have top-secret security clearances.

Case prosecutors declined, through the Pentagon spokesman, a request to summarize Pohl's latest order.

But a memo circulated in the office of the Chief Defense Counsel, and obtained by the Miami Herald, says Pohl "stands by the prior order, insofar the government is required to produce information about the who, what, where, and when of both Nashiri and his alleged co-conspirators' treatment in CIA custody."

It has one "major concession," the memo says, and gives prosecutors some "leeway in redacting, 'anonymizing' and summarizing the details."

The "leeway" comes from a footnote, according to those who read the ruling. Pohl suggests that prosecutors might selectively invoke the Intelligence Identities Protection Act — he cites in U.S. law, "50 USC 421" — to withhold from defense lawyers the names of CIA agents who worked at the black sites.

Left unclear is whether the government could also try to shield the identities of medical personnel, guards, interrogators and contractors on a case-by-case basis.

Nashiri, who suffers from post traumatic stress disorder, was waterboarded by the CIA and subjected to a mock execution and other interrogation techniques that his lawyers call torture.

The order seeks details so far denied to Nashiri's lawyers, including the names of countries where the CIA imprisoned him, how he was transported, restrained and clothed, photographs of his confinement and interrogators' statements, logs and notes of Nashiri's questioning as well as others named in the case.

Pohl has scheduled Nashiri's trial to start Feb. 9, but between prosecution challenges and uncertainty about whether the CIA will comply, that date seems unlikely.

Two suicide bombers attacked the USS Cole, a guided-missile destroyer, off Aden, Yemen, on Oct. 12, 2000. Seventeen American sailors were killed and dozens more were injured.

U.S. agents captured Nashiri in Dubai two years after the attack. He was spirited through a series of secret CIA prisons before being taken to Guantánamo in September 2006.

The defense counsel memo predicts that, regardless of whether the prosecutors appeal or seek to create summaries in collaboration with the judge, "the ruling is likely to delay the scheduled trial date in the Nashiri case, while the details get worked out, probably until next summer."

Prosecutors have argued that Pohl does not have the authority to order such sweeping government disclosure. Congress created a system of shielding that information from defense teams, they argue — even from attorneys with top-secret clearances.

Separately, the judge has yet to rule on a request by Nashiri's lawyers for a complete copy of the Senate Select Committee on Intelligence's so-called "Torture Report," a massive, classified examination of the CIA's secret interrogation program — 500 pages of which the CIA has reviewed for declassification and passed on to the White House.

Nashiri's defense attorneys want the whole thing.

[Tonitrus]

Hijacking Timmah's thread for this...what seems like a pretty fucked up situation that should be getting more play....

http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article182031196.html

Gitmo judge sends Marine general lawyer to 21 days confinement for disobeying orders
BY CAROL ROSENBERG
NOVEMBER 01, 2017 9:50 AM

GUANTANAMO BAY NAVY BASE, CUBA
The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow the judge's orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

Air Force Col. Vance Spath also declared "null and void" a decision by Marine Brig. Gen. John Baker, 50, to release three civilian defense attorneys from the capital terror case. The lawyers resigned last month over a covert breach of attorney-client privilege involving something so secretive at the terror prison that the public cannot know.

Wednesday evening, with Baker confined to his quarters in a trailer park behind the courthouse, Judge Spath issued another order: Directing the three lawyers — Rick Kammen, Rosa Eliades and Mary Spears — to litigate Friday in the death-penalty case against Abd al Rahim al Nashiri remotely from the Washington D.C., area by video feed to Guantánamo.

Baker is the chief defense counsel for military commissions, and the second highest-ranking lawyer in the Marine Corps. He had excused Kammen, Eliades and Spears from the case on ethical grounds, and refused to rescind the order —prompting the judge to find him in contempt of court. Baker also invoked a privilege stemming from his oversight role and refused Spath's order to swear an oath and testify in his court.

The judge's dizzying pace of events— sentencing the Marine general in a 35-minute hearing, then ordering three civilian lawyers to defend the Saudi in his capital case by video link — came as the colonel sought to force the civilian, Pentagon-paid attorneys back on the case.

Spath, who has declared they had no good cause to quit, had ordered Kammen, Eliades and Spears to come to Guantánamo on Sunday with other war court staff for a pretrial hearing. They refused. Kammen, a veteran capital defense attorney who had represented Nashiri for a decade, said Spath's order to travel was an "illegal" effort to have three U.S. citizens "provide unethical legal services to keep the façade of justice that is the military commissions running."

Nashiri is accused of orchestrating al Qaida's Oct. 12, 2000 suicide bombing of the U.S. warship off Yemen. Seventeen sailors died, and dozens more were injured. He has been in U.S. custody for 15 years, and was arraigned in 2011.

Saudi Abd al Rahim al Nashiri during his Nov. 9, 2011 military commissions arraignment at the U.S. Navy base at Guantánamo Bay, Cuba, in a sketch by artist Janet Hamlin approved for release by a court security officer.

No trial date has been set in part because the sides were still haggling over what Top Secret evidence the defense can see as it prepares for trial. Also, Nashiri needs to have a court-ordered MRI to see if he suffered brain damage during his four years in secret CIA custody. He was waterboarded, kept in a coffin-sized box and subjected to other cruel treatment detailed in the Senate's "Torture Report."

In his latest order, Spath threatened the three civilian lawyers with a contempt of court finding too.

He told them to appear at 8 a.m. Friday at Military Commissions headquarters in Alexandria, Virginia. The Pentagon would provide a link with the Top Secret courthouse in Cuba on Friday for a hearing — expected to take testimony from an unnamed witness — and would also set up "secure terminal equipment" for the accused terrorist, Nashiri, if they wanted to consult, the order said.

Spath issued the order to the three civilians more than six hours after he sentenced the general to 21 days confinement in his quarters, which happen to be in a trailer behind the war court compound called Camp Justice. On Thursday, a federal judge holds a hearing on whether to halt the war court hearings because Nashiri lacks a learned counsel.

In Spath's court Wednesday, Baker attempted to protest that the war court meant to try alleged foreign terrorists had no jurisdiction over him, a U.S. citizen. Spath refused to let him speak and ordered him to sit down.

"There's things that I want to say, and you are telling me that I cannot say them," Baker said.

Spath replied, "This is really not a pleasant decision," calling the proceedings neither "fun" nor "lighthearted."

Spath said Baker was out of line in invoking a privilege. Privilege, the Air Force judge declared, is a judge's domain and a judge has the authority to weigh and review privilege.

Without that, Spath said, there would be "havoc in every system of justice."

He added that, if left unchecked, a chief defense counsel would have the power to essentially dismiss a war court case.

The judge said in court that a senior official at the Pentagon, Convening Authority Harvey Rishikof, would review Baker's sentence. Defense Department spokesman Maj. Ben Sakrisson said Rishikof "will determine whether to affirm, defer, suspend or disapprove the sentence in the next few days."

Wednesday's was the first contempt conviction in the post- 9/11 military commissions. In fact, no other war court judge has held a contempt proceeding.

The challenge of defending accused terrorists at Gitmo

Marine Brig. Gen. John Baker, the chief defense counsel for military commissions, describes the challenge of defending accused terrorists at Guantanamo Bay, Cuba, at an Ad Hoc Committee to Review the Criminal Justice Act in Philadelphia on April 11, 2016.

Baker, the second-highest ranking lawyer in the Marine Corps, is a 28-year career officer who got his law degree from the University of Pittsburgh in 1997. Baker applied for the job two years ago, which came with a promotion, as a colonel at the Marine Corps Military Justice and Community Development unit. He has served as both a defense attorney and prosecutor on traditional military court-martial cases.

And he has emerged as an outspoken critic of the hybrid military-federal justice system set up by President George W. Bush after the Sept. 11, 2001 attacks and subsequently reformed by President Barack Obama.

"Put simply, the military commissions in their current state are a farce," Baker said in a talk last year in a national security program. "Instead of being a beacon for the rule of law, the Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay."

In Washington D.C., Wednesday, a defense lawyer who works for Baker asked a federal judge to halt this week's USS Cole case hearings because Kammen's resignation left Nashiri without a criminal defense attorney with capital experience.

The law governing military commissions says a defendant is required to have a capital defense attorney. Spath said Wednesday he intended to proceed with pretrial hearings with Nashiri represented at Guantánamo by a junior Navy lawyer with no death-penalty experience. He ruled from the bench a day earlier that "learned counsel are not practicable in the near term, if ever, by the actions of General Baker."

U.S. District Court Judge Royce Lamberth scheduled a hearing at the federal court on 333 Constitution Ave., in Washington, D.C., for 9:30 a.m. Thursday, when no session is scheduled for the war court at Guantánamo.

Lamberth is the judge of record in Nashiri's mostly dormant habeas corpus petition. His courthouse also is the judicial branch's keeper of a copy of the so-called Senate Torture Report that investigated the CIA's post- 9/11 secret prison network.

The federal court petition argued for delay. "No evidence is imminently likely to disappear or degrade in value. Indeed, this case has already entered its ninth year of pretrial proceedings and [Nashiri] has been in U.S. custody, without any meaningful judicial review, for 15 years."

Nashiri was captured in 2002 and disappeared into the CIA's network of secret prisons known as the Black Sites until his September 2006 transfer to this Navy base in southeast Cuba. He was arraigned in 2011.

[Tonitrus]

And the most recent update.

https://www.politico.com/story/2017/11/03/john-baker-released-guantanamo-dispute-244523