FORT MEADE, MD. — Prosecutors must turn over never-revealed details about the time a Guantanamo Bay detainee spent in secret CIA prisons after his arrest in connection with the deadly attack on the USS Cole in Yemen, according to a military judge’s order released Tuesday.
The five-page order was a victory for defense lawyers representing Abd al Rahim al-Nashiri, who is accused of orchestrating the Oct. 12, 2000, bombing of the USS Cole in the Yemeni port of Aden. The attack killed 17 U.S. sailors, injured 42 others and tore a massive hole into the side of the guided-missile destroyer based in Norfolk, Va.
Al-Nashiri, who was born in Saudi Arabia, has been held at the U.S. military prison at Guantanamo Bay, Cuba, since 2006, after being held in a series of secret CIA prisons.
A CIA inspector general’s report said al-Nashiri, considered to have once been one of the most senior leaders in al-Qaida, was waterboarded and threatened with a gun and a power drill because interrogators believed he was withholding information about possible attacks against the United States. Such practices were allowed under rules approved by the George W. Bush administration but many of them have since been repudiated as torture.
Prosecutors, who can appeal the judge’s ruling, had argued that information about his time spent in CIA custody was irrelevant to the case. The defense believes the case against al-Nashiri is tainted by CIA actions in the secret prisons and could be used to spare him from the death penalty.
Little information about what happened in the CIA black sites has been confirmed by the government. The order by Army Col. James Pohl does not make any details available to the public. He notes explicitly in his order that all parties in the case are required to follow a protective order barring release of classified information in the case.
The judge said the government must provide details of al-Nashiri’s capture, detention, rendition and interrogation. The information the judge ordered the government to reveal includes a chronology of how al-Nashiri was shuttled among secret CIA black sites, and how he was transported, clothed and restrained. The government also must provide reports, summaries of interrogations and any photos or videos documenting the conditions of his confinement.
Prosecutors are barred under the rules for military commissions from using any evidence or testimony obtained by coercion. The defense, however, has argued that all information from al-Nashiri is tainted by the harsh treatment he endured at the hands of the CIA.
The defendant, wearing in white prison clothes, sat at the defense table for much of the daylong session. At times, he leaned back in his swivel desk chair and rocked from side to side. At other times, his eyelids drooped and he appeared bored by the lengthy legal arguments that droned on in an effort to resolve issues about the death penalty, witnesses and evidence.
His trial is not slated to begin until December. The hearing on a long list of pretrial motions was held Tuesday at Guantanamo but reporters were able to watch it from Fort Meade.
Defense lawyer Richard Kammen renewed his bid to get the judge to remove himself from the case, arguing that Pohl was assigned to the case by the convening authority that is prosecuting his client.
The prosecution claimed Kammen’s motion was simply a way to denounce the overall military process for trying Guantanamo detainees, and that there was no evidence to suggest any appearance of impropriety by the judge.
The judge denied the motion.
Associated Press writer Ben Fox in Miami contributed to this report.