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Guantánamo Attorneys Urge Panetta To Preserve CIA Black Site Evidence

WASHINGTON - Attorneys
for detainee Abd Al-Rahim Hussain Mohammed al-Nashiri today sent a
letter to CIA Director Leon Panetta requesting that the CIA “black
site” buildings, interrogation cells, prisoner cells, shackles, water
boards and other equipment be preserved for inspection and
documentation. Al-Nashiri, who is now detained at Guantánamo, was held
in the secret CIA prison facilities from 2002 to 2006. Director Panetta
has ordered the closure of CIA black sites, but 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 – and in doing so destroy evidence of his

The CIA 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 ACLU litigation.

The ACLU, through its John Adams
Project with the National Association of Criminal Defense Lawyers,
worked with under-resourced military lawyers to provide legal counsel
for several of the Guantánamo detainees including al-Nashiri during the
military commissions process.

The full text of the letter, which
is signed by al-Nashiri’s military and civilian defense counsel, is
below and available online at:

April 13, 2009
Leon E. Panetta
Director, Central Intelligence Agency
Central Intelligence Agency
Washington, DC 20505

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.



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Lieutenant Commander

Captain, USAF

Military Defense Counsel

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

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

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

Civilian Defense Counsel

John Rizzo, CIA General Counsel (Acting)
Central Intelligence Agency
Washington, DC 20505
Fax: 703-482-1739

Eric Holder, Attorney General
United States Department of Justice
Office of the Attorney General
950 Pennsylvania Avenue
Washington, D.C. 20530
Fax: 202-307-6777

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



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