NEW YORK - Lawyers for a
Guantanamo detainee who claims he was held and tortured in one of the
"black site" secret prisons run by the U.S. Central Intelligence Agency
is demanding that the CIA preserve cells and interrogation
paraphernalia there as evidence of mistreatment.
Military and civilian
counsel to Abd Al-Rahim Hussain Mohammed al-Nashiri sent a letter to
CIA Director Leon Panetta requesting that the CIA "black site"
buildings, interrogation cells, prisoner cells, shackles, waterboards
and other equipment be preserved for inspection and documentation.
of the letter came on the heels of Thursday's release of four more
top-secret "legal memoranda" prepared by the Justice Department's
Office of Legal Counsel during the administration of former President
George W. Bush. The memos approved "enhanced" interrogation techniques
they claimed were not torture - a claim rejected by both the Barack
Obama administration and human rights advocates. Nine other OLC memos
were previously released by the Obama administration.
OLC is the
DOJ office that provides authoritative legal advice to the president
and all executive branch agencies. It drafts legal opinions of the
attorney general and also provides its own written opinions and oral
advice in response to requests from the executive branch.
who is now detained at Guantánamo, was held in the secret CIA prison
facilities from 2002 to 2006. While President Obama has ordered the
closure of CIA black sites, al-Nashiri's attorneys are concerned that
the CIA intends to destroy the sites, including the buildings and the
equipment used to interrogate and torture al-Nashiri and other
detainees. They say that would amount to destroying evidence of his
Panetta told CIA personnel on April 9, 2009, that
the CIA would be "decommissioning" the CIA secret facilities. The
letter asks Panetta to "preserve all the secret sites."
has admitted that al-Nashiri was subjected to waterboarding while in
CIA custody. Videotapes depicting his abusive interrogations have
already been destroyed by the agency and are the subject of ongoing
litigation by the American Civil Liberties Union (ACLU).
its John Adams Project with the National Association of Criminal
Defense Lawyers, the ACLU worked with under-resourced military lawyers
to provide legal counsel for several of the Guantánamo detainees
including al-Nashiri during the military commissions process.
lawyers' letter put Panetta "on notice that we will be seeking
discovery and inspection of this highly relevant evidence in whatever
court Mr. Al-Nashiri finds himself."
The lawyers added, "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."
They note that
Panetta's predecessor, General Michael V. Hayden, has admitted that Mr.
Al-Nashiri was subjected to waterboarding, "which is a form of torture,
while in the custody of the CIA."
According to the recently
released report from the International Committee of the Red Cross
(ICRC), 'waterboarding was only one of the many forms of torture
inflicted on Mr. Al-Nashiri while in the custody of the CIA," the
lawyers' letter said.
They claim that, according to the ICRC
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."
that time, the letter says, Al-Nashiri "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 CIA and other government agencies also admitted
to the purposeful destruction of at least 92 videotapes of
interrogations and observations of prisoners in its black sites,
specifically including the destruction of videotapes of waterboarding
and other observations of Mr. Al-Nashiri, the letter says.
concludes, "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."
"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," the lawyers wrote.
charged in the military commission with offences that carried the death
penalty. His lawyers note that, "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."
Evidence held by the CIA "is exculpatory evidence" and Al-Nashiri "will be entitled to it."
letter concludes: "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."
Thursday's release of the four OLC memos, it is likely that the
government's treatment of detainees will attract increased public
scrutiny - despite President Obama's pledge to close Guantanamo Bay and
CIA black site prisons.
Continuing concern about U.S.
credibility in war-on-terror detentions and prosecutions has been
voiced by many U.S. legal scholars. David Cole, one of the country's
preeminent constitutional authorities, told IPS, "For better or worse,
the U.S. is a world leader on matters of human rights. When the U.S.
violates human rights in the fight against terrorism, it sends a
message to autocrats and dictators worldwide that they, too, can deny
human rights in the name of counterterrorism."