‘Abd al-Rahim al-Nashiri, a designated “high-value detainee” in US government parlance, is on trial in the Guantánamo Bay military commissions. The 49-year old Saudi Arabian is accused of directing the October 2000 al-Qaeda suicide boat bombing of the USS Cole off the coast of Aden, Yemen, which killed 17 sailors and injured 40 more, and a failed plan to bomb the USS Sullivans. Five other high-value detainees, including alleged “mastermind” Khalid Shaikh Mohammad, are being tried together for the terrorist attacks of September 11, 2001. All six could face the death penalty if convicted.
Al-Nashiri’s experiences offer a case study of how the US government has chosen to wage the “war on terror” and the consequences of those choices. The Saudi Arabian represents a hard case, however, because he is a secret. For the four years he spent in the custody of the CIA, he was a ghost. Today, he remains obscured by the long shadow the CIA casts over military detention and commission operations at Guantánamo Bay. He is housed in a secret facility with other former CIA detainees, and has never been allowed to communicate by phone or Skype with members of his family, let alone anyone else (although the government recently indicated that brief, monitored and time-delayed family calls may be a possibility in the future). The American lawyers who represent him are obligated to guard their words when speaking about the years he was “disappeared” or the cause of his diagnosed post-traumatic stress disorder.
What makes al-Nashiri “high-value” today is not that he poses a continuing threat to national security (he is under lock and key around the clock) or that he could be tapped for actionable intelligence about terrorist plots. Rather, he, like the other high-value detainees at Guantánamo, is the literal embodiment of the CIA’s rendition, detention and interrogation program, which remains one of the most closely guarded national security secrets despite being drydocked in 2006 and officially terminated in January 2009. To keep the CIA’s secrets secret, these prisoners’ experiences — their overseas detention, their interrogation, the conditions of their confinement and the people involved in their abuse — remain classified. The government’s justification for its harsh incarceration of al-Nashiri in the present is that he has knowledge of classified information, namely his own memories of how he was treated by the CIA.
Keeping human beings classified is no easy feat for a government that wishes to persuade the world that Joint Task Force Guantánamo (JTF-GTMO) detention operations are “safe, humane, legal and transparent” (the official motto) and that the military commissions are a perfectly acceptable venue for producing justice. This work is done through coercion, cooptation and compulsion of complicity on the government’s part.
The Ghost Years
Al-Nashiri is one of the 14 high-value detainees who were transferred from CIA custody to Guantánamo in September 2006. That move was prompted by the Supreme Court’s ruling in Hamdan v. Rumsfeld three months earlier that all prisoners have, at minimum, the rights guaranteed by Common Article 3 of the 1949 Geneva Conventions, which is regarded as a humanitarian baseline in war. Hamdan was a repudiation of President George W. Bush’s February 7, 2002 declaration that the Geneva Conventions are inapplicable to the “war on terror.” Because the CIA’s program of government-sanctioned kidnapping, forced disappearance and torture was in flagrant violation of Common Article 3, at a press conference on September 6, 2006, Bush begrudgingly announced that the CIA detainees would be brought out of the darkness of the secret prisons known as “black sites” and into the “dark gray site” of Guantánamo. (The phrase “dark gray site” comes from attorney James Connell, who represents Ammar al-Baluchi, one of “the 9/11 five,” as Khalid Shaikh Mohammad and his fellow defendants are known.)
Al-Nashiri had actually been to Guantánamo before 2006. He was one of four high-value detainees who were secretly transferred onto the base on September 24, 2003 in an unmarked Boeing 737. [1] That “ghost flight” started in Kabul, where it picked up Mustafa Hawsawi (now one of the 9/11 five) from the black site known as the Salt Pit. The next stop was a black site named Stare Kiejkuty in Szymany, Poland, where Mohammad was picked up, then dropped off at another code-named Britelite in Bucharest. The last pickup was in Rabat — al-Nashiri, Abu Zubayda (the first person turned over to the CIA for interrogation) and Ramzi bin al-Shibh (another of the 9/11 five). According to the Associated Press, “By late summer 2003, the CIA believed the men had revealed their best secrets. The agency needed somewhere to hold them, but no longer needed to conduct prolonged interrogations. The US naval facility at Guantánamo Bay seemed a good fit.” (Although this AP article, like hundreds of others about the CIA’s program, is in the public domain, its subject matter is regarded as classified. Government employees with security clearance who have specific knowledge are obligated to neither confirm nor deny the accuracy of such information. Lawyers working in the military commissions are prohibited from remarking upon such open-source material.) The four men were held at a new secret facility named Strawberry Fields. By March 2004, however, the CIA decided that the base was not such a good fit after all because the Supreme Court might rule in Rasul v. Bush (as it subsequently did in June) that the government cannot hold people at Guantánamo incommunicado indefinitely. Al-Nashiri and the other ghost prisoners were transferred back overseas where they remained until after Hamdan.
Al-Nashiri’s journey of extraordinary renditions through the CIA’s secret gulag began in November 2002, a month after agents of the United Arab Emirates arrested him in Dubai. [2] It included stays in the Salt Pit; a black site in Bangkok, where he experienced the panoply of White House-approved CIA interrogation tactics, including waterboarding; and Stare Kiejkuty, where, naked and hooded, he was subjected to mock execution with a power drill and an unloaded semi-automatic handgun. [3] From Poland, he was transferred to Morocco until the 2003 move to Guantánamo. In 2004, he was sent back to Morocco, then to Romania [4] where he remained until the Washington Post reported in November 2005 that there were black sites in “eastern European democracies” (which Human Rights Watch revealed several days later as Poland and Romania). In the CIA’s scramble away from Europe, al-Nashiri was sent somewhere — that location is still a secret (although Afghanistan would be a good guess). According to Dick Marty, author of the 2007 Council of Europe investigative report on secret detentions and illegal transfers of detainees involving member states, there are “formidable obstacles…to get to the truth about the CIA [program] of secret detentions in Europe.” [5] The Open Society Justice Initiative has documented 54 foreign governments that cooperated in some manner with the CIA’s rendition program. [6]
Since September 2006, al-Nashiri has been housed at Camp 7, a maximum-security facility that is as close to a black site as remains. [7] Its 15 residents are isolated not only from all other prisoners at Guantánamo (the current total is 136) but most of the time from each other as well. The camp is run by Task Force Platinum, a unit composed of reservists.
Camp 7 is so secret that no journalist has ever been permitted to tour it. There is no public information about when it was built or how much it cost. In fact, the existence of the camp was a secret until it was revealed, by accident, on December 8, 2007, when a line about the facility was preserved in the declassified client meeting notes of Gitanjali Guttieriez, a Center for Constitutional Rights attorney who represented Majid Khan. That revelation, according to the Miami Herald’s Carol Rosenberg, created a crisis for military spokespeople because they were not permitted to talk about Camp 7 and did not know how to respond to journalists’ queries. Among the defense lawyers in these two cases, only one, James Connell, has visited Camp 7 (for 12 hours) to gain a firsthand understanding of the conditions of confinement for his client al-Baluchi, but he is not permitted to provide any details about what he saw, and the photos and maps produced during his visit are classified.
The Evolving Process
On March 14, 2007, al-Nashiri had a hearing before the Combatant Status Review Tribunal, the administrative body set up after Rasul to determine whether individuals at Guantánamo met the American-made criteria of “unlawful enemy combatant” to justify their continued detention. Al-Nashiri’s hearing was closed to journalists, and the transcript remains heavily redacted, including most details that he provided to the tribunal about his torture by the CIA.
In December 2008, during the lame duck period of the Bush administration, al-Nashiri was charged to stand trial before the military commissions. His arraignment was scheduled for February 9, 2009. In January, the government requested a 120-day postponement while the new Obama administration figured out what to do about Guantánamo. The judge, Col. James L. Pohl, denied that request, and accepted a motion from al-Nashiri’s attorneys for a hearing immediately following the arraignment to introduce evidence about his treatment by the CIA. Hours later, the government withdrew the charges, thus removing al-Nashiri from the jurisdiction of the commissions.
In October 2009, Congress passed a revised Military Commissions Act. In November, the Obama administration announced its plans about how and where prisoners at Guantánamo would be tried. The 9/11 five were designated for trial in federal court because terrorism is not an offense under the laws of war. But that plan fell apart for domestic political reasons and in 2011 their case was reassigned to the military commissions. Al-Nashiri was tapped from the outset for trial by military commission because the main charges against him relate to his alleged role in the bombing of the USS Cole, which is a military object. (Similar reasoning was applied to Omar Khadr, whose main charge, “murder in violation of the laws of war,” was connected to the death of a soldier during a firefight in Khost, Afghanistan, in July 2002. [8]) On April 20, 2011, prosecutors submitted capital charges against al-Nashiri to the Convening Authority of the commissions, and hearings commenced on January 17, 2012.
But to say that al-Nashiri is “on trial” is a bit of a misconception. His case, like that of the 9/11 five, has not moved beyond the pre-trial motion phase. Attorneys in both cases have been battling with prosecutors over the discovery of materials relating to their clients’ ghost years, as well as the legality and legitimacy of using military commissions to prosecute the offenses for which their clients are charged.
One of the legal questions that the al-Nashiri case raises is when the United States was “at war.” The USS Cole was bombed the year before the September 11 attacks and the launching of the “war on terror.” Was the United States at war in October 2000, and if so, with whom? Because military commissions are supposed to have jurisdiction over law of war offenses in wartime, the government has crafted an ex post facto claim that the country was at war with al-Qaeda from 1996 when Osama bin Laden issued a fatwa calling for jihad against America. Another question then arises: If the US was at war in 2000, is the bombing of a military object a law of war offense? According to David Glazier, a preeminent expert on the military commissions and the laws of war:
I was in command of a Navy frigate at the time of this attack [on the USS Cole], and I can say with certainty that no one considered themselves at war either immediately before or after this attack; indeed the crew of the Cole very much had a peacetime mentality, contributing to the attack’s success. Unlike a number of previous terrorist attacks, this one did not provoke any US military response—there simply was no government consideration of this constituting an act of war. And it is better that it did not as far as our ability to prosecute it [because] naval warfare has always permitted approaching the enemy under ruse or false colors, and unlike the use of civilian airliners as a weapon, this attack comes close to being permissible if it took place in an armed conflict. So this trial absolutely belongs in federal court as an ordinary act of terrorism. [9]
Thus, the question of when and where the war started will be one of many complex legal matters to be argued before and decided by the officers who compose the panel (the military term for a jury) whenever the al-Nashiri case goes to trial.
Trying High-Value Secrets
The defense attorneys who represent high-value detainees compare the challenges of doing their work to litigating in the dark with their hands tied. The protective orders that govern their handling of classified materials — and attach criminal penalties for violations — include obligations to neither confirm nor deny any details relating to their clients’ ghost years, even if those details are in the public domain as a result of investigative journalism or leaks. They are barred from showing certain classified materials to their clients — even information about them — because the latter do not have security clearances. They are required to treat everything their clients say about their CIA years as “presumptively classified,” and not just “ordinary” classified information but
TOP SECRET//SCI level, which requires extremely stringent security measures, such as use and storage only in highly secure rooms certified as Sensitive Compartmented Intelligence Facilities (SCIFs) and limiting its possession to a very small number of individuals with the requisite clearances. Access to SCI information also requires agreement to a strict non-disclosure agreement which the government keeps on file for 70 years, as well as detailed reporting requirements on substantive contacts with foreign nationals. [10]
The high-security courtroom where the hearings take place is rigged with a mute button should anyone say something about the CIA program that might be heard by journalists, who observe from a separate room in the back that has a 40-second delay on the audio feed. What those looking into the courtroom can see is a legal process that runs on two tracks, one public and another shadowed by blackouts, closed sessions where secrets can be discussed, and “no comment” responses by government spokespeople. Also visible is a fundamental contradiction between due process, which would include the presumption of innocence, and the treatment of those on trial as guilty. JTF-GTMO personnel who bring the shackled defendants to the courtroom work off a standard operating procedure script where they are — in the present tense — “terrorists” and “enemies picked up on the battlefield” (despite the fact that almost no one at Guantánamo, certainly not al-Nashiri, was picked up on a battlefield).
Prosecutors — who function as representatives of the government — must balance on the tightrope strung between their duty to act in a manner that persuades the world that the military commission process is transparent and fair, and their other duty to keep secrets secret by fighting defense team motions for discovery of information about their clients’ ghost years. When asked about his role in guarding the CIA’s secrets, Brig. Gen. Mark Martins, chief prosecutor for the military commissions, explained that there “still are important sources and methods that need to be protected” for national security reasons. For example, although it is public knowledge that al-Nashiri was held and tortured in Poland (among other places), the government still treats it as a classified secret. Fighting the defense on discovery of classified information is not, Martins insisted, about shielding the CIA from embarrassment for past “mistakes,” but rather because “we don’t want information to get out that will aid bad guys still on the run. Also, we don’t want something to come out that will prevent accountability” for the crimes being prosecuted in the commissions.
In this context, the phrase “prevent accountability” reflects a concern that evidence and testimony about torture might put the government’s goals of conviction and execution at risk, and would also, in essence, put the CIA on trial. Given that the official position of the US government under both the Bush and Obama administrations has been to prevent accountability for the crime of torture, the military commissions represent the last front where that battle is being fought.
Lawyers who represent al-Nashiri and the 9/11 five do want to make CIA torture part of these capital cases, and for legally valid reasons. For the trial phase, they need evidence and witness testimony about what happened to their clients during their years of pre-trial detention — including the infliction of great bodily injury and psychological abuses — in order to challenge evidence that the government claims incriminates them. Martins and other prosecutors insist that no statements gleaned from torture will be introduced at trial. Yet the admissibility of secret evidence and hearsay (e.g., by others who perhaps were tortured by the CIA or agents of a foreign government) should, according to defense lawyers, be offset by their access to — and use of — information about outrageous government conduct. Such information is also crucial to the sentencing phase. Part of the work of a good defense in any capital case involves conducting investigations in order to prepare mitigation arguments. If the defendants in these cases are found guilty, their lawyers want to be prepared to argue that years of deliberate torture by government agents and further years of harsh confinement should mitigate death sentences.
Al-Nashiri’s defense team is headed by Richard Kammen, a civilian death penalty lawyer (“learned counsel”) from Indianapolis who has been on the case since 2008. Al-Nashiri’s first military lawyer, Cmdr. Stephen Reyes, left the team in 2013 to study at Harvard. Now al-Nashiri’s military lawyers are Cmdr. Brian Mizer, who defended bin Laden’s driver Salim Hamdan in his 2007 commission trial, and Maj. Tom Hurley, who had been part of Pfc. Chelsea Manning’s court-martial defense team.
Nancy Hollander, a civilian lawyer from Albuquerque, has also been part of the al-Nashiri team since 2008. In 2013, however, the Department of Defense altered her security clearance to gain access to classified materials and to meet with her client from “approved” to “disapproved.” Why? Cmdr. Mizer argued at hearings in February and April 2014 that the change was an arbitrary and illegitimate move to retaliate against Hollander for representing al-Nashiri in cases before the European Court of Human Rights against the governments of Poland [11] and Romania [12] for permitting the CIA to run black sites where he was tortured. In response to the defense motion for an evidentiary hearing to discover why Hollander’s clearances were pulled, the lead prosecutor in the al-Nashiri case, Cmdr. Andrea Lockhart, argued that the military commissions do not have the power to investigate security determinations by executive branch experts acting within the scope of their authority, nor should their motivations be subjected to second-guessing.
The FBI and the Justice Department carry water for the CIA. In the spring of 2014 it was revealed that FBI agents had attempted to persuade or intimidate several non-attorney members of the 9/11 five’s defense teams to inform on their colleagues. The motivation for this spy operation was a suspicion that people might be mishandling classified information. The operation was exposed when a linguist on the Ramzi bin al-Shibh team disregarded the non-disclosure instructions and told his colleagues. Other lawyers asked their team members, and learned that the FBI had attempted to turn others into informants as well. The exposure raised serious conflict-of-interest concerns, which derailed the case. To put the case back on track, a Justice Department special prosecutor was appointed to look into the matter. In June, he argued in the military commission that the FBI was “no longer” pursuing a criminal investigation of the defense teams. Because the investigation was “closed,” he urged Judge Pohl to deny the defense motions for further hearings in which FBI agents would be called to explain who had ordered the investigation in the first place and why. The defense teams were not assuaged by the special prosecutor’s whitewashing assurances, so Pohl canceled the hearing scheduled for October in an order that remains sealed. [13]
The FBI’s operation is the latest in a series of spying incidents. First was the revelation that government agents were reviewing legal mail between lawyers and their clients. Second was the revelation that the CIA was remote controlling the courtroom itself; on January 28, 2013, David Nevin, Mohammad’s lead attorney, was addressing the scheduling of a motion pertaining to secret prisons. As soon as he said the word “secret,” flashing red lights and white noise filled the courtroom. The alarm had been triggered not by the judge or the court security officer, but by someone off site. [14] In the aftermath came a third revelation when lawyers figured out that the microphones on the defense tables in the courtroom were set to pick up any sound, even a whisper, and parties unknown were listening in. Fourth was the discovery that the rooms in Camp Echo where lawyers meet their clients were bugged with microphones disguised as smoke detectors. [15] The last, a real accident rather than a calculated move, occurred when the prosecution gained access to hundreds of thousands of confidential e-mails on defense computers as a result of a sloppy set-up on a single server. [16] Dealing with these events has consumed the work of the commissions, and goes a long way toward explaining why the cases are nowhere near trial.
Political Gridlock
In April 2014, Judge Pohl issued a ruling on a discovery motion in the al-Nashiri case (which has implications for the 9/11 five case as well) ordering the government to provide the defense with the top secret details they seek about their client’s ghost years. These details include a chronological accounting of where al-Nashiri was held between his capture in 2002 and his transfer to Guantánamo in 2006; the names, employment records and training manuals of all government agents, medical personnel, guards, contractors and others who were involved in his renditions and interrogations; and all records, photos, videos, interrogation logs, assessments and other materials about al-Nashiri and any other current or former prisoners who might have been interrogated about the USS Cole bombing. Judge Pohl concurred with the defense that, in a capital case, all of this information — in its “raw” (not redacted or summarized) form — should be made available to them, not just those materials that the prosecution thinks are relevant.
In his motion asking the judge to reconsider the ruling on discovery, Brig. Gen. Martins made two main arguments: First, he urged Judge Pohl to dial back the scope of the order to give the government time to complete its declassification review of the Senate Select Committee on Intelligence’s 6,300-page report on the CIA’s rendition program. That report, which was completed and voted for release by the Committee in December 2012, is apparently such a scathing indictment that former CIA head George Tenet has offered his services to the current director, John Brennan, for a media counterattack when the information becomes public. [17] In January 2014, frustrated Sens. Diane Feinstein (D-CA) and Carl Levin (D-MI) wrote to President Barack Obama urging him to resolve the declassification delays because enduring secrecy about the CIA’s “now defunct” and “misguided” program adversely affects the work as well as “the reputation” of the Guantánamo military commissions. In April, the week before Brig. Gen. Martins submitted his motion to reconsider, then-White House counsel Kathy Ruemmler wrote to Feinstein that “the president and this administration are committed to working with you to ensure that the 500-plus page executive summary, findings and conclusions of the report…undergo a declassification review as expeditiously as possible, consistent with our national security interests.” Over the months since then, however, the declassification process, which the CIA effectively controls, has hit a political wall in Washington, and it is now anyone’s guess when — or if — any part of the report will be released.
Brig. Gen. Martins’ other argument in his motion to reconsider is that Judge Pohl overstepped his authority by ordering the government to make classified information available to defense attorneys. That was not what Congress had in mind when it created the commissions in 2006. When Judge Pohl ruled on the appeal in June, he stood by his order, although he did grant prosecutors some “leeway in redacting, ‘anonymizing’ and summarizing the details.” [18] As a consequence of preserving such “derivative classification,” the regime of secrecy shielding the CIA remains intact.
In July 2014, Judge Pohl passed the al-Nashiri case to a new judge, Col. Vance H. Spath, while keeping the 9/11 five case for himself. When the matter of classification and discovery was revisited during the August 2014 hearings, attorney Kammen expressed his frustration about the “trust-free zone” of Guantánamo: “We have all the [top security] clearances in the world, but we are still not trustworthy enough” to see the underlying documents. One problem, he claimed, is that the summaries, which are produced by the prosecution, are “reasonably useless if not outright false.” He conceded that it is not the prosecution’s fault, assuming that they are faithfully following the classification procedures; the problem is in the accuracy or lack thereof of the underlying documents that were produced and are “owned” by the CIA. Given the CIA’s robust record of lying, deception and misrepresentation, even to other sectors of the government, [19] the “just trust us” posture of prosecutors, who function as stand-ins for the CIA in the discovery process, presents an irreconcilable point of contention. The problem is compounded by defense attorneys’ relative powerlessness against governmental discretion. As Kammen argued, “They have already removed one lawyer [Hollander] from the case on a pretext…. Do I think they are going to prosecute me? No. Do I think they might try and get rid of me? Yeah. Do I trust them on this? No.”
Keeping CIA’s secrets secret goes to the heart of what is perhaps the most fundamental question: Is the military commission a “real court”? As Kammen pointed out to the new judge in August, if at the end of the day al-Nashiri is acquitted, the government has claimed the right to continue to detain him because he is in possession of classified information — his memories.
When people ponder why Guantánamo is still open or whether it will ever close, al-Nashiri is one embodiment of the answer: There is no exit until the CIA’s secrets are declassified or until the classified memories die with the man.
Endnotes
[1] Associated Press, August 10, 2010.
[2] See http://www.therenditionproject.org.uk/global-rendition/the-detainees/abd-al-rahim-al-nashiri.html.
[3] Adam Goldman, “The History of the CIA’s Prison in Poland,” Washington Post, January 23, 2014.
[4] Adam Goldman and Matt Apuzzo, “Inside Romania’s Secret CIA Prison,” The Independent, December 8, 2011.
[5] The Marty Report, June 2007, paragraph 42.
[6] Amrit Singh, Globalizing Torture: CIA Secret Detention and Extraordinary Rendition (New York: Open Society Foundations, 2013).
[7] Carol Rosenberg, “Guantánamo Web Exclusive: A Prison Camps Primer,” Miami Herald, October 24, 2014.
[8] See Lisa Hajjar, “Travesty in Progress: Omar Khadr and the US Military Commissions,” Middle East Report Online, June 26, 2010; Lisa Hajjar, “Waiting for History: A Meditation on the Trial of Omar Khadr,” Jadaliyya, September 19, 2010; and Lisa Hajjar, “Tweeting from Guantánamo: Recording History 140 Characters at a Time,” Jadaliyya, November 3, 2010.
[9] Personal correspondence dated November 23, 2009.
[10] David Glazier, “Still a Bad Idea: Military Commissions Under the Obama Administration,” Loyola Law School Legal Studies Paper.
[11] The European Court of Human Rights ruling in al-Nashiri v. Poland is online here.
[12] The European Court of Human Rights ruling in al-Nashiri v. Romania is online here.
[13] Miami Herald, October 15, 2014.
[14] Amy Davidson, “A Red Light at Guantánamo,” New Yorker, January 29, 2013.
[15] Mark Denbeaux, Spying on Attorneys at GTMO: Guantánamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship (Newark, NJ: Seton Hall Law School Center for Policy and Research, 2013.
[16] Miami Herald, April 11, 2013.
[17] New York Times, July 25, 2014.
[18] Miami Herald, June 25, 2014.
[19] Washington Post, March 31, 2014.
