The Senate's forthcoming report on the CIA's use of harsh interrogation techniques could add to the legal complications facing the long-delayed U.S. military tribunals of terrorist suspects at the Guantanamo Bay detention camp.
The Obama administration is removing or censoring national security secrets in the Senate report, a declassification process that will involve the Pentagon as well as spy agency officials. Two U.S. officials familiar with planning for the report's declassification said the Defense Department already has received copies of the still-secret summary of the Senate Intelligence Committee's report and expects to provide its own assessment of the material to White House and CIA officials.
A Pentagon official said concerns about any "compromise of intelligence sources and methods" was one of the key reasons for the Pentagon's role. All the officials spoke on condition of anonymity because they were not authorized to discuss publicly how the report was being reviewed.
Even limited disclosures from the Senate's 400-page summary on the CIA's harsh treatment of al Qaeda operatives in "black site" prisons abroad could further roil the military trials. The tribunals already have been plunged into new chaos with the disclosure last week of an FBI investigation into defense teams.
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The declassification effort, ordered by President Obama after the Senate panel approved releasing the summary earlier this month, could also add to pressure in federal courts from defense lawyers seeking access to all of the still-secret, 6,200-page Senate report, legal experts said.
Military prosecutors had hoped trials could begin next year for accused 9/11 terror mastermind Khalid Sheikh Mohammed and four other defendants. A separate trial for a suspect in the USS Cole bombing is expected later this year. But legal and logistical challenges posed by holding the trials at Guantanamo as well as other issues have drawn out the proceedings.
Last week, a military hearing was halted when defense lawyers revealed that the FBI had questioned a member of one of the five defense teams in the 9/11 trial. And during a hearing Tuesday for Cole bombing suspect Abd al Rahim al-Nashiri, Army Col. James Pohl, the military trial judge, ordered prosecutors to turn over long-withheld details about the defendant's confinement and treatment in overseas prisons.
The defendants in both cases were held and interrogated in CIA-run prisons overseas for up to four years before they were flown to the U.S. Navy-run prison at Guantanamo Bay, Cuba, in September 2006. All have claimed they were brutalized during their internment at the so-called black sites. But under the strictures of the military commission trials, their defense lawyers have had only limited access to the details of their treatment. Under a revamping of commission rules ordered by Obama and passed by Congress in November 2009, the tribunals are prohibited from introducing any evidence at trial obtained from the interrogations or from abusive treatment.
Lawyers for the five 9/11 defendants are already seeking a court order to obtain the Senate report and supporting documents related to their clients' custody at the CIA sites during the early to mid-2000s. Their attorneys say they have almost no information about what happened to the men, which they say they will need to challenge the conditions of their confinement or argue against a possible death sentence if they are convicted.
The information could also be used to prove illegal pretrial detention and punishment, which in military law can be used to reduce an eventual sentence or for a legal challenge based on the constitutional prohibition against cruel and unusual punishment.
A lawyer for Mohammed said that most of what the defense knows about Mohammed's treatment comes from a declassified but heavily edited report from the CIA's inspector general. The report said Mohammed was subjected to the simulated drowning method known as waterboarding and other "enhanced interrogation techniques" after his capture in Pakistan in March 2003. Army Maj. Jason Wright, a defense lawyer, said Mohammed's harsh treatment may have exceeded the 183 confirmed cases of waterboarding. Wright said the Senate report could give the public a fuller picture of what he endured.
"The U.S. government has only declassified a few facts about Mr. Mohammed and his treatment by the CIA for 3 1/2 years at undisclosed foreign locations," Wright said. "They have declassified a carefully crafted narrative to say it was only 183 sessions of the waterboard, which is a mock execution. But I can assure you that there is a lot more out there that is not just embarrassing but it's disgusting."
James Connell, who represents Ammar al-Baluchi, one of Mohammed's co-defendants, said Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., detailed how Senate investigators had reviewed 10.2 million pages of information about the CIA rendition, detention and interrogation program. Connell said he has received no original CIA documents about the treatment of his client.
A spokesman for Feinstein said Tuesday that Director of National Intelligence James Clapper will oversee the Senate report declassification, which in addition to the CIA and Pentagon, is also expected to involve the State Department and Justice Department. Feinstein wants White House control of the process, but it remains uncertain how closely administration officials will be involved.
Charles D. "Cully" Stimson, a former deputy assistant defense secretary for detainee affairs during the Bush administration, said military officials could limit any possible trial impacts in their declassification reviews to the White House and the CIA. Stimson said Pentagon lawyers and intelligence experts would likely be the front-line reviewers. Once the Senate report is made public, Stimson said, the military tribunal judge would be faced with the option of either ordering the material to be reviewed in closed court sessions or releasing it for full or partial use during the trial.
The report's release might "set up a very interesting constitutional question because it could help the defense question the credibility of government witnesses," said Stimson, who now heads the National Security Law Program at the Heritage Foundation.
Eugene R. Fidell, a military justice expert at Yale Law School, said military judges in the 9/11 trials and other cases may be forced to make the Senate summary available to defense lawyers because of rules that require the prosecution to turn over any possible exculpatory materials to defense lawyers.
But the most significant impact, Fidell said, could be in federal courts, where defense lawyers have in recent years challenged terror suspects' indefinite confinement. Once declassified, the report "could have a spillover effect on litigation in the federal courts," Fidell said, particularly in future cases involving habeas corpus, the constitutional principle that allows defendants to challenge their detention.