Showing posts with label Abdul Rahim al-Nashiri. Show all posts
Showing posts with label Abdul Rahim al-Nashiri. Show all posts

Wednesday, April 15, 2009

Gitmo Attys: Stop CIA Destruction of Evidence at "Black Site" Prisons

The following is the text of a letter released by the ACLU, and authored by Guantanamo military and civilian attorneys to Leon Panetta, Director of the CIA, following Panetta's declaration that the CIA was finally shutting down their "Black Site" secret prisons. I think the text of the letter speaks sufficiently for itself. H/T to geomoo at Docudharma.
DEPARTMENT OF DEFENSE
OFFICE OF THE CHIEF DEFENSE COUNSEL
OFFICE OF MILITARY COMMISSIONS

April 13, 2009

Leon E. Panetta
Director, Central Intelligence Agency
Central Intelligence Agency
Washington, DC 20505

RE: REQUEST TO PRESERVE CIA DETENTION FACILITIES USED TO DETAIN HIGH-VALUE DETAINEES—A.K.A. “BLACK SITES”

Dear Mr. Panetta:

We are counsel for Abd Al-Rahim Hussain Mohammed Al-Nashiri. Mr. Al-Nashiri is currently detained at Guantanamo Bay Naval Base. He has been there since September, 2006. From sometime in late 2002 until 2006 he was incarcerated in the secret prison facilities run by the Central Intelligence Agency (CIA).

Your predecessor, General Michael V. Hayden, has admitted that Mr. Al-Nashiri was subjected to water boarding, which is a form of torture, while in the custody of the CIA. According to the publicly released report from the International Committee of the Red Cross (ICRC) which was dated February 14, 2007, and entitled ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, water boarding was only one of the many forms of torture inflicted on Mr. Al-Nashiri while in the custody of the CIA.

According to that report, while in CIA custody, Mr. Al-Nashiri was also forced to stand with his wrists shackled to a bar in the ceiling for prolonged periods of time—extending to several days— and was threatened with sodomy and with the rape and arrest of his family members. Many of the prisoners the ICRC interviewed did not want their names used in the report. As such, though the ICRC report lists much more cruel, degrading and inhuman treatment, the report is not specific as to what additional treatment was inflicted on Mr. Al-Nashiri while held in the CIA’s “black” sites.

Throughout that time he was not able to communicate with his family, a lawyer or anyone. Effectively the CIA “disappeared” him for four years while it tortured him at will and beyond the eyes of the world.

The CIA and other government agencies also admitted to the purposeful destruction of at least ninety-two video tapes of interrogations and observations of prisoners in its black sites, specifically including the destruction of video tapes of water boarding and other observations of Mr. Al-Nashiri.

Had Mr. Al-Nashiri known that the CIA possessed these video tapes and intended to destroy them, he would have demanded their preservation. However, neither he, his lawyers nor the courts learned of the CIA’s plan until after the tapes had been destroyed and now they are forever gone.

In light of the destruction of video taped evidence of the torture inflicted upon Mr. Al-Nashiri and the newly released report from the ICRC describing still more horrific tortures, we noted with interest your message to CIA personnel on April 9, 2009, in which you stated that the CIA would be “decommissioning” the CIA secret facilities.

Although we welcome your decision to cease the secret detention and mistreatment of prisoners of the United States Government, we are concerned that the CIA intends to actually destroy the sites—including the buildings and the equipment used to interrogate and torture Mr. Al-Nashiri—before Mr. Al-Nashiri has had the opportunity to fully investigate his conditions of confinement. We write to avoid the destruction of more evidence—namely the actual secret facilities themselves.

Mr. Al-Nashiri was charged in the Military Commission with offenses that carried the penalty of death. Although those charges have now been dismissed, we fully expect the government to prosecute Mr. Al-Nashiri and again charge him with offenses that could carry the death penalty. In fact the government is now actively working to determine in what forum he will be prosecuted.

Regardless of the forum in which Mr. Al-Nashiri is tried, evidence of his conditions of confinement will be relevant in assessing the reliability of any of his statements and any statements of other prisoners similarly held that the government plans to use against him. This evidence will also be highly relevant during any sentencing proceeding. It is exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and he will be entitled to it.

The CIA’s secret prison facilities and the inquisition-like treatment meted out to its prisoners were a tragic, immoral and illegal period in our history that we all hope has come to an end. But its effects are enduring, especially on someone like Mr. Al-Nashiri who, according to the ICRC report, lived through the horror chambers of at least three different secret prisons. Those buildings, interrogation cells, prisoner cells, shackles, water boards and other equipment must be preserved until such time as we have an adequate opportunity to document it and a court can determine the relevance and materiality of this evidence. As a criminal defendant, the Fifth, Sixth and Eighth Amendments to the United States Constitution will entitle him to discovery of exculpatory evidence and this is surely exculpatory evidence.

Therefore, we are requesting that you preserve all the secret sites. By this letter you are now on notice that we will be seeking discovery and inspection of this highly relevant evidence in whatever court Mr. Al-Nashiri finds himself. We have already lost the video tapes which would have allowed a jury to see what happened to Mr. Al-Nashiri in those secret prisons. We cannot lose the remaining tangible evidence of the actual prisons themselves and the instruments of torture within them.

//s//
STEPHEN C. REYES
Lieutenant Commander
JAGC, USN

CHRISTOPHER CAZARES
Captain, USAF

Military Defense Counsel

NANCY HOLLANDER
Freedman Boyd Hollander Goldberg & Ives P.A.
20 First Plaza, Suite 700
Albuquerque, NM 87102

THERESA DUNCAN
Freedman Boyd Hollander Goldberg
& Ives P.A.
20 First Plaza, Suite 700
Albuquerque, NM 87102

RICHARD KAMMEN
Gilroy, Kammen
One Indiana Square, #150
Indianapolis, IN 46204

Civilian Defense Counsel

Cc:
John Rizzo, CIA General Counsel (Acting)
Central Intelligence Agency
Washington, DC 20505

Eric Holder, Attorney General
United States Department of Justice
Office of the Attorney General
950 Pennsylvania Avenue
Washington, D.C. 20530

The White House
ATTN: Greg Craig, Esq., White House Counsel
Office of White House Counsel
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500

Sunday, February 8, 2009

U.S. Drops Charges Against al-Nahiri

ACLU Blog of Rights reported yesterday that Susan Crawford, the Convening Authority for Guantanamo's Military Commissions, has withdrawn all changes against Abdul al-Rahim al-Nashiri, one of the alleged attackers of the USS Cole. The charges can be reinstated later, and al-Nashiri remains in custody at Guantanamo.

In an executive order issued earlier this month, President Obama had suspended all military commissions hearing, pending a review of their procedures, which have been heavily criticized by human rights and legal groups. But in a rebellion of sorts against Obama's policy, chief military judge at Guantanamo, Col. James L. Pohl, had refused the administration's order for a delay in the al-Nahiri proceedings. The stage was set for a confrontation between the Obama adminstration and the Pentagon, until Judge Crawford stepped in.

Crawford explained:
I considered carefully the 5 February 2009 request by the prosecution to withdraw charges and specifications in the case of United States v. A d al-Rahim Hussein Muhammed Abdu al-Nashiri. I find that withdrawal is in the best interests of justice. Pursuant to my authority under Rule for Military Commissions 604, I hereby withdraw without prejudice all charges and specifications referred to trial by military commission in this case.
Jake Trapper, at ABC's blog Political Punch, describes some of the pressures the military is exerting on the administration in this case (and by extension, on Obama's basic policies on torture and interrogations):
The original plan was for the announcement not to be made until after President Obama meets with the families of victims of terrorist attacks on 9/11 and on the U.S.S. Cole Friday afternoon, where he will assure them that this step was not done to be lenient towards al-Nashiri.

The move is being done to stop the continued prosecution of al-Nashiri in a court system that his administration may ultimately find illegitimate, not for any other reason, sources told ABC News....

Asked for reaction to the news, Commander Kirk Lippold (Ret.), former Commander aboard the U.S.S. Cole when it was bombed on October 12, 2000, told ABC News that he was "concerned" about the move.

"For some reason the administration says what's been expressed through the legislature is not sufficient," Lippold said of the military commissions, which he said had "undergone extensive legal and legislative review...They need to allow the process to go forward."

The 26-year Navy veteran said he found the decision to close the detention facility at Guantanamo Bay "disappointing," but he seemed willing to hear the president out.
Whether it's Col. Pohl, or Commander Lippold (Ret.), we are hearing more and more the voices of career military men who are upset that any substantive change in their operations will be effected by Obama's reforms. While Obama tacks far to the right to placate these Pentagon types, nothing seems to make them happy, and capitulation to these forces would mean the Bush/Rumsfeld Pentagon will continue on their merry way, with military commission trials that allow torture evidence, and interrogation techniques that amount to torture. These policies will be maintained by waving the bloody shirt of U.S. deaths in the "war on terror." Never mind that the U.S. has killed hundreds of thousands and tortured untold thousands over this same period.

If Obama even intends to really change how the U.S. military and intelligence agencies operate -- and it's unclear that he really does -- then he will have to fight forces inside his own Pentagon who are dead set on seeing such change defeated. He can start first with lifting his administration's position asking "a San Francisco federal judge to throw out a lawsuit brought against [Bush attorney John] Yoo by Jose Padilla." At the same time, they can drop the Bush-initiated claims of "state secrets" privilege in the Jeppesen and al-Haramain cases.

Within the next few weeks, any pretense the Obama administration has about seriously changing Bush torture/detention/secrecy policy will be put to the test. Failing such tests will mean a fight within the progressive movement between those who will defend the Obama administration at all costs, and those who will oppose it when it goes off the rails. A similar battle will probably occur over military policy, as the war in Afghanistan heats up, fueled by U.S. determination to carry the fight into Pakistan.

Wednesday, February 4, 2009

Bitter Truth on Guantanamo

Andy Worthington has a new article asking the public not to forget the prisoners at Guantanamo, where a hunger strike involving approximately 70 detainees (out of 242 overall) remains in force. Despite well-known principles of medical ethics, Guantanamo medical personnel are force-feeding detainees, who are held down by up to 16 straps, as they try to exercise "the only power they have in a place that has been dedicated to isolating and dehumanizing them for seven years."
In addition... those who refuse to leave their cells to be force-fed voluntarily are “beaten and forcibly extracted from their cells,” another hideous procedure that is part of the very fabric of Guantánamo, carried out by teams of five heavily armored guards, responsible for quelling even the most minor infringements of the rules, who, over the years, have been responsible for attacks so severe that prisoners have ended up with broken limbs.

This is, I’m sure you’ll agree, a far cry from the “humane treatment of prisoners” required by the Geneva Conventions, and it is crucial, therefore, that those concerned with the treatment of the prisoners at Guantánamo maintain the pressure on the new President to demonstrate that he is keeping to his word.
Worthington analyzes the situation in Guantanamo, post Obama's order to shut down the facility within a year. Inside Gitmo, little has changed. Despite Obama's order to suspend the military commissions trials, Military Judge Col. James Pohl ruled the arraignment of "high-value" detainee, Abdul Rahim al-Nashiri, accused of involvement in bombing of the USS Cole, will take place as scheduled. Worthington's conclusion, "the bitter truth as I write these words is that Guantánamo is still being run as if the Bush administration remains in control."

Another example of this disturbing fact is the inclusion of abusive techniques in the Army Field Manual, the document which covers interrogation policy at Guantanamo (and by executive order, now all military and CIA personnel), which also allows for up to 30 days of isolation, sleep deprivation, and forms of sensory deprivation. Although it prohibits certain torture techniques like waterboarding, sexual humiliation and forced nudity, it fails to prohibit other, such as stress positions.
How much the inclusion of these loopholes in the Presidential orders was influenced by the Pentagon or by the CIA is as yet unknown, but their existence indicates that the struggle to ensure that America is, genuinely, a country that does not torture, is not yet over.

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