DANGER ROOM: 9/11 Defendants Seek to Preserve CIA Sites Where They Were Tortured

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By Spencer Ackerman
01.24.13 -- 6:30 AM
 The last people you might expect to want to see the CIA’s secret torture prisons kept intact are the people who were tortured there. But the defense lawyers for the 9/11 co-conspirators are arguing that the CIA’s so-called “black sites” need to remain open, untouched and exactly as they were when top al-Qaida operatives were abused.

The CIA torture program isn’t on trial at Guantanamo Bay. The five accused 9/11 conspirators are, and they face the death penalty. But the legal maneuver brings to light an irony of post-9/11 justice: The military tribunals that remain the bane of civil libertarians might be one of the last venues to investigate torture.

On Monday at Guantanamo, Army Col. James Pohl, the judge in the 9/11 tribunal, will hear a longstanding motion filed by the defense team to “preserve any existing evidence of any overseas detention facility used to imprison any witness in this case.” The gambit, explains James Connell, a Defense Department civilian who represents defendant Ammar al-Baluchi, seeks to treat the black sites like crime scenes — something the Justice Department has been reluctant to do.

It’s not that the defendants want others taken to the black sites. It’s that, as Connell tells Danger Room, “If a site is still open, it’s evidence.” 

Some of the treatment experienced at the black sites by the five defendants, which include the confessed 9/11 mastermind Khalid Shaikh Mohammed, include being doused with water for the simulated drowning known as waterboarding; being kept in contorted “stress positions”; and being deprived of sleep for extended periods, sometimes as a result of the stress positions. But the defense hasn’t been able to review any official material about what went on inside the black sites — something crucial to its legal strategy, since the military commissions are supposed to exclude evidence obtained through “the use of torture, or by cruel, inhuman, or degrading treatment.” (.PDF)

Emphasis on supposed to. “The government has not yet provided any discovery or information about our clients’ treatment at the black sites,” Connell says. “If the trial were tomorrow, I would have no way of introducing it.”

The CIA sent 14 detainees from the black sites to Guantanamo in 2009. President Obama forbade the CIA in 2009 from holding any other detainees. But the CIA didn’t build the black sites, it rented them, in places like Romania, Poland and Thailand. And since they’ve been closed, they’re at risk of being destroyed or modified by their host countries in such a way that will prevent anyone outside of the torture program from ever knowing what exactly went on there.

 

Connell isn’t even asking for documentation from inside the black sites. That’s likely to come later this year, he says. For now, the defense team is looking to preserve the architecture of the sites, which it contends can reveal information about his clients’ treatment. “If a person is in isolation,” Connell argues, “how that isolation is enforced is a relevant legal factor as to whether they’ve been illegally punished, and the building design is relevant to that.”

An earlier version of the military commissions insisted the government not mess with the shuttered black sites. In April 2009, Army Col. Stephen R. Henley, another military judge, ordered the government to “maintain the status quo” at any facility where the 9/11 defendants were held. (.PDF) But in 2010, the Obama administration voided the military commission for the five accused 9/11 conspirators in a failed bid to try them in civilian courts, only to start over with a different commission — one that may not be bound by Henley’s order. “Unlike a civilian court, the authority of a military commission ends when it is dissolved,” Connell clarifies.

If it seems strange that the black sites’ building design should be a factor for disclosure about the treatment that took place inside them, consider that there’s been practically no official disclosure about what did. The Senate intelligence committee recently completed a report into the CIA’s “enhanced interrogation program,” but for the time being, it remains a secret. The Justice Department declined to prosecute CIA officers involved in the torture program. Nearly everything else known about the treatment of detainees kept in black sites has been pieced together from references in declassified legal documents or from journalism.

The secrecy surrounding the commissions prevents Connell from saying if he has specific reason to fear that the black sites are at risk of destruction. (“I can neither confirm nor deny that,” he says.) But it’s not a hypothetical fear. The former chief of the CIA Counterterrorism Center destroyed nearly 100 videotapes documenting brutal interrogations.

Observers of the military commissions are reluctant to predict how Pohl will rule on the black-site preservation. But Daphne Eviatar, who monitors the commissions for Human Rights First (disclosure: a former journalistic colleague of mine), isn’t optimistic after seeing Pohl kill the audio feed in the courtroom last October when it seemed like one of the lawyers was about to use the word “torture.”

And even if Pohl orders the government to preserve evidence from the black sites doesn’t mean he’ll allow that information to be disclosed in open court. A victory for Connell isn’t the same as a victory for openness about torture. And if that’s the way Pohl rules, it may be a long time before the public has a better chance to learn even a little more about what the CIA torture program entailed.

“War crimes trials are often about a public presentation of what happened at some historical point,” Eviatar says. “Here, although what happened [before] 9/11 is the primary subject of the trial, how the U.S. responded to 9/11, through these five defendants, is also important, and the trial out to be able to bring out all of that.”

“If the government wants to go forward with a case seeking the death penalty against these men, it has to make the evidence which may still exist available to them,” Connell says. “If they will not make relevant evidence available, the law suggests the prosecution cannot go forward with the case. ” Unless Pohl decides otherwise.

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NO COMMENT - The DOJ’s Torturer-Protection Program

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By sending a decorated intelligence officer to prison, the Justice Department shields torturers in the ranks of the CIA

By Scott Horton 

Scott Shane at the New York Times reports that “in more than six decades of fraught interaction between the agency and the news media, John Kiriakou is the first current or former C.I.A. officer to be convicted of disclosing classified information to a reporter.” Kiriakou succumbed to mounting legal bills and months of pressure from federal prosecutors by agreeing to a plea bargain under which he will serve thirty months for the crime of confirming to a reporter the identities of two former colleagues associated with the agency’s Bush-era extraordinary-renditions and torture programs:  Deuce Martinez and Thomas Donahue Fletcher. The former was involved in harsh interrogations and later went to work with the principal architects of the CIA’s torture program, Bruce Jessen and James Elmer Mitchell. The latter was a principal coordinator of the extraordinary-renditions program. Shane’s report ably recounts the essential facts surrounding the Kiriakou case. It falls a bit short, however, in examining the broader policy issues raised by the case. 

Here are the major questions, coupled with the answers suggested by the Justice Department’s management of the case:

(1) Who drives the prosecutorial decision-making in Espionage Act cases involving whistleblowers?

It seems clear, as has been suggested in several prior reports, that the Kiriakou prosecution sprang directly out of an investigation, launched by the CIA hierarchy, into efforts by Guantánamo defense counsel to probe the use of torture techniques on their clients. The CIA, fearing exposure of the identities of personnel involved in its torture programs, sought to use shield legislation (the Intelligence Identities Protection Act) to strike back against its critics, and to impose blinders on legal proceedings. Patrick Fitzgerald, the U.S. Attorney who oversaw the highest-profile and most successful prosecution involving the IIPA to date (that of Dick Cheney’s chief of staff, Scooter Libby), was tapped to handle this probe. Fitzgerald had credibility with the intelligence community, but he also appears to have been appropriately skeptical about the idea of using the IIPA to go after lawyers and organizations involved in the Guantánamo proceedings; ultimately, he departed the case. But the leads developed while Fitzgerald was managing the probe revealed Kiriakou to have been an important source for journalists covering Guantánamo.  

While Fitzgerald pushed back against the intelligence community, it does not appear that his successors at Justice had either the backbone or the will to do so.
Every year, Washington witnesses thousands of similar disclosures of classified information, prompting questions about who makes the call on when to prosecute cases, and about how these decisions are made. In the Kiriakou case, it is plain enough that whatever the formalities, the choices to open the investigation, to bring charges, and to pursue those charges aggressively were made not by the Department of Justice, but by the CIA. Former CIA general counsel John Rizzo has acknowledged that such requests regularly flow from his office, and that they reflect consultations with the CIA hierarchy.

During the Bush years, remarkably little evidence existed to show that Justice Department lawyers exercised independent judgment in matters surrounding torture and extraordinary-renditions programs. This relationship does not appear to have changed under Obama. Instead, the DOJ remains in the thrall of the intelligence community in general, and of the torture program’s architects and their protectors in particular.

(2)  What provides the ratio decidendi for whistleblower prosecutions?  Is there a corollary for cases involving torture?

DOJ spokespeople regularly tell us that thousands of breaches of secrecy take place in any given year. But only one or two of these cases actually leads to prosecution — so how are these cases selected?  This is an important question, but one for which the DOJ has consistently failed to provide meaningful guidance beyond self-serving and generally inscrutable pronouncements about threats to national security. 

Among their rationalizations is that such cases are difficult to prosecute.  But Columbia scholar David Pozen demonstrated very persuasively in an important recent study of whistleblower prosecutions that this claim is false. Indeed, the Kiriakou case tends to support Pozen’s thesis, showing how easy it is for investigators to develop a case by subpoenaing a suspect’s phone and email records. 

The Kiriakou case, like the Jeffrey Sterling and Thomas Drake cases before it, suggests strongly that DOJ prosecutors defer to senior figures in the intelligence community.  These cases also indicate that those senior figures are permitted to target those who have embarrassed them by exposing incompetence, corruption, or criminal wrongdoing — the precise outcomes it is in the public interest to expose.

Kiriakou shows that protection of the authors and executors of the torture and extraordinary-renditions programs constitutes a particularly high national-security priority in the estimation of the intelligence community, and that this view is accepted and endorsed by the DOJ.  In effect, the Espionage Act prosecution of Kiriakou amounts to a new DOJ torturer-protection program, designed to signal that the DOJ will intimidate those who give up information about people involved in torture.
It didn’t seem to matter in this case that Fletcher and Martinez’s identities were well known to persons investigating the torture program, and that Kiriakou’s confirmation of their names was hardly consequential. The prosecution of Kiriakou is confirmation of an official policy of omertà: those who rat on torturers and program masterminds will be treated ruthlessly.

(3) Should the IIPA be used to prosecute those who disclose the identities of operatives involved in the Bush-era torture and enforced-disappearance programs?
In the DOJ’s view, a covert-intelligence operative is entitled to the protections the IIPA is designed to preserve, so the exercise of the act is mechanical, and leaves no reason to probe whether its invocation is appropriate.  But this points to the department’s misunderstanding or ignorance of the law governing torture and enforced disappearances.  There is a commanding public interest in the disclosure of how these programs work and who is involved in them, and in the investigation and prosecution of related criminal acts.  The use of the IIPA to thwart disclosure, investigation, and prosecution is not only perverse, it may itself constitute a criminal act of obstruction. 

The real issue is not whether intelligence operatives are entitled to be protected from exposure because of the risk of criminal prosecution abroad.  In fact, much of what covert operatives do in the course of their official duties (espionage, surreptitious entry, and wiretapping, for instance) may very well be criminal acts in the foreign jurisdictions in which they are acting.  The IIPA may very reasonably be invoked to protect agents in such circumstances. But the situation is different when the criminal conduct rises to the level of a jus cogens crime — a rarified category of internationally recognized, universally enforced offenses that includes such crimes as slavery, torture, and enforced disappearances.  In this case, the obligation to declare the conduct criminal, investigate, and prosecute it, is absolute. The United States has failed to discharge this obligation; in fact, the Attorney General has effectively flouted it by proclaiming a policy of impunity even for those guilty of torture-homicides.

It strikes me as quite implausible that the CIA fears that figures like Martinez or Fletcher will be targeted by terrorist organizations for their earlier actions.  Rather, the Agency’s fear is very different: that covert operatives or former operatives will be sucked into pending criminal investigations into torture prisons, most notably a probe under way in Poland. It would indeed be surprising if Fletcher and Martinez were not already persons of interest in that investigation. Langley is likely also concerned about last month’s El Masri v. Macedonia ruling, which saw Europe’s highest court castigate Germany and Macedonia for failing to fully investigate and prosecute a team led by the head of the CIA’s international-jihad unit, Alfreda Frances Bikowski, involved in the sodomizing and torture of a German greengrocer in a horrendous case of mistaken identity.

The IIPA serves legitimate purposes, but the obstruction of pending criminal probes into torture and enforced disappearances is not among them.  There is little doubt that this is the purpose the Kiriakou prosecution serves. The DOJ is claiming victory in the case when it should be ashamed. The prosecution raises fundamental questions about the department and its infamous role in American torture and enforced-disappearances programs, and demonstrates once more that the DOJ is aligning itself on the wrong side of the law — for torturers and against their victims; for deceivers and against the truth.  To protect those involved in systematic torture and disappearances, the Justice Department is willing to put behind bars a decorated, dedicated intelligence officer, because he dared to speak the truth.

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SPEAK DEVIL-Washington 'Accountability Project' is 'Unveiling" LinkedIN's New BlackLIST GROUP Member John KIRIAKOUS with a 'Rogue Rendering'

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Kiriakou to be Honored with Portrait Wednesday         

on January 23, 2013
 

CIA-Torture Whistleblower Latest in 'Americans Who Tell the Truth' Series by Artist Robert Shetterly

(Washington, DC) – Next Wednesday, Jan. 23, CIA/Anti-torture whistleblower and GAP client John Kiriakou will be honored at an event unveiling his portrait, which is the latest in a series by prominent artist Robert Shetterly that features notable truth-tellers from American history. The event will be held in Washington, DC at Busboys & Poets (14th and V NW location) from 8:30 – 10:30 p.m.

This portrait, the newest edition to Shetterly's "Americans Who Tell the Truth" project, will be unveiled just two days prior to Kiriakou's sentencing in Alexandria, Virginia on Friday, Jan. 25 (more below). This portrait series, in the words of the artist, is "dedicated to the belief that a profound sense of citizenship is the only safeguard of democracy and the best defense of our social, economic, and environmental rights." Many prominent whistleblowers have been featured in the series, including Daniel Ellsberg, Frank Serpico, Coleen Rowley, and GAP client Thomas Drake.

Shetterly, Kiriakou and GAP National Security & Human Rights Director Jesselyn Radack (the subject of a series portrait herself) will speak during the program. Additionally, noted jazz pianist Mary Anne Driscoll will premiere a new composition at the event, based on Kiriakou's words and actions. Light refreshments will be served.

As space is limited, and the event is free and open to the public, it is requested that journalists who wish to attend RSVP to GAP Communications Director Dylan Blaylock at dylanb@whistleblower.org.

"Even if torture works, it cannot be tolerated – not in one case, or a thousand, or a million," stated Kiriakou. "If their efficacy becomes the measure of abhorrent acts, all sorts of unspeakable crimes somehow become acceptable. I may have found myself on the wrong side of the government on torture. But I'm on the right side of history ... there are things we should not do, even in the name of national security. One of them, I now firmly believe, is torture."

Stated the artist Robert Shetterly, "A state that consistently uses law to subvert justice and to violate human rights has become an enemy of its own defining spirit. It takes great courage to defy the power of such a state and to demand it adhere to its moral imperatives. John Kiriakou has shown that courage in opposing this country's flagrant use of torture and its attempts to justify that use. It is my great honor to add his portrait to the Americans Who Tell the Truth project."

About Kiriakou

Kiriakou is a CIA veteran who headed counterterrorism operations in Pakistan after 9/11, organized the team operation that captured suspected al-Qaeda operative Abu Zubaydah, and refused to be trained in torture interrogation tactics. In December 2007, Kiriakou gave an on-camera interview to ABC News in which he disclosed that Zubaydah was "waterboarded" and that "waterboarding" was torture – making him the first CIA officer to publicly label the action as torture. His interview also helped expose the CIA's torture program as policy, rather than the actions of a few rogue agents.

For these and other actions, in January 2011, Kiriakou became the sixth whistleblower charged with violating the Espionage Act by the Obama administration. These six prosecutions are more than all previous presidential administrations combined. Late last year, Kiriakou pled guilty to violating the Intelligence Identities Protection Act in exchange for the government dropping all other charges against him. Kiriakou is now the sole CIA officer who faces jail time for any action involving the federal government's torture program, despite being a whistleblower on it. 

 

[Information contained in BKNT E-mail is considered Attorney-Client and Attorney Work Product privileged, copyrighted and confidential. Views that may be expressed are those of the author(s) and do not necessarily reflect those of any government, agency, or news organization.]