Judge Upholds Order Demanding Release of CIA Torture Accounts

By Spencer Ackerman, Guardian UK

26 June 14

US government loses attempt to keep accounts of torture of Abd al-Rahim al-Nashiri secret

military judge has rejected the US government's attempts to keep accounts of the CIA's torture of a detainee secret, setting up a fateful choice for the Obama administration in staunching the fallout from its predecessor's brutal interrogations.

In a currently-sealed 24 June ruling at Guantánamo Bay – described to the Guardian – Judge James Pohl upheld his April order demanding the government produce details of the detentions and interrogations of Abd al-Rahim al-Nashiri during his years in CIA custody. The Miami Herald also reported on the ruling, citing three sources who had seen it.

Among those details are the locations of the "black site" secret prisons in which Nashiri was held until his September 2006 transfer to Guantánamo; the names and communications of CIA personnel there; training and other procedures for guards and interrogators; and discussions of the application of so-called "enhanced interrogation techniques".

The government has charged Nashiri in connection to the deaths of 17 sailors in the 2000 bombing of the USS Cole. After his 2002 capture, Nashiri's interrogators revved a power drill near his head, threatened him with a gun and waterboarded him, producing a sensation akin to drowning.

Pohl's orders represent a watershed in disclosure for the commissions. Lawyers for Guantánamo detainees charged with war crimes have long criticised their lack of access to CIA detentions files, which they say prevents them from fully defending their clients, several of whom are known to have been abused in custody.

James Connell, a lawyer for one of the defendants in the 9/11 trial, said he and his colleagues had been waiting for the resolution of the government's appeal to file similar motions for accounts of their own clients' accusations of CIA abuse. Pohl is also the judge in that case, which is the signature trial in the much-criticised military commissions.

"The exact same issue of CIA torture is presented in the 9/11 case," Connell said on Wednesday, adding that he expected to ask Cole for "identical information" for his client, Ammar al-Baluchi, by Friday.

The options available to the government, should it continue its challenge to keep Nashiri's interrogations secret, have now contracted substantially.

It can ask a military appellate court, the US court of military commission review, to reverse Pohl's ruling, arguing that he applied an incorrect standard. The appeals court has only rarely met. Connell said the government would "derail the whole Nashiri case" by seeking further appeal, an embarrassment since the military commissions process has dragged on for years without producing many convictions.

Pohl's order does not necessarily mean that the public will gain greater insight into the CIA's infamous post-9/11 interrogations. Only lawyers for Nashiri will get to view the CIA records.

Additionally, there is confusion over whether the CIA will in fact comply with the order, as the military commissions have never before ordered the agency to do anything. While the agency has fought hard to limit the Senate's purview of its detainee torture – to the point where its operatives crossed a technical firewall that the Senate considers an act of spying on it – flouting a judge's order would be a flagrant and visible act of defiance.

The CIA declined to comment on Pohl's ruling.

Outside of Pohl's courtroom, the CIA is bracing for a different sort of public reckoning with torture. The Senate intelligence committee intends to release portions of a voluminous investigation into the subject this summer, and the CIA has just delivered its desired redactions to the White House. Pohl has yet to decide if defence lawyers for Nashiri ought to be able to view the entire, classified Senate report; a 20 June motion on the subject is currently under seal.