The judge overseeing the Sept. 11 mass murder trial has ordered prosecutors to go back and look at secrets sealed up in the court record to assess what the public can now see in light of this week’s revelations in the Senate Intelligence Committee’s so-called Torture Report.
The chief prosecutor, Army Brig. Gen. Mark Martins, declined to discuss the three-page order on Saturday — neither its substance nor its implications — because it was not yet made public.
But four attorneys who read it said the judge, Army Col. James L. Pohl, on Friday instructed the prosecution to carry out a sweeping review of more than two years of classified trial filings.
At issue is how much of the once-secret CIA interrogation and detention program can now be discussed in open court — and which classified filings can be unsealed — in the trial of the five men accused as conspiring to direct, train and finance the 19 hijackers who killed nearly 3,000 people in New York, Pennsylvania and the Pentagon on Sept. 11, 2001.
The alleged mastermind Khalid Sheik Mohammed, 49, and four other men were formally charged May 5, 2012, but their death-penalty prosecution has been slow moving in part because of a superstructure of secrecy built around what the CIA did to them in the three and four years before they were brought to this base in September 2006 for eventual trial.
Now that the Senate Intelligence Committee has released a damning 524-page summary of its 6,700-page study of the brutal tactics the CIA used in its secret overseas prisons — and the trustworthiness of what their interrogations gleaned — information the spy agency once shielded at the Guantánamo war court as national security secrets is declassified.
One defense attorney interpreted the judge’s order to open to the public "all the torture methods" described in defense filings that are currently sealed as Top Secret.
"Judge Pohl ordered the prosecution to take a new look at the material they claimed was classified," said Cheryl Bormann, who represents Walid bin Attash, 36, an alleged 9/11 plot deputy. "Revisiting the issue should result in the world finding out what happened to these men," she said, adding that the public portion of the Senate report "doesn’t begin to cover the horror."
The Senate Intelligence Committee report describes Bin Attash, who has just one leg, being subjected to 70 hours of standing sleep deprivation that caused the leg to swell. He was left nude, slapped, doused with water, forced into a wall and threatened with rectal re-hydration, according to the report.
Defense lawyers want details of what was done to the men — and for the public to see it along with the military jury — in order to challenge case evidence. Also, if the accused terrorists are convicted, they want to use the details to argue against their military execution.
The chief prosecutor, Martins, says only voluntary testimony will be used at trial.
Attorney Jay Connell, defending alleged conspirator Ammar al Baluchi, said the order meant that the public should be able to see attachments to a legal motion he filed seeking government documents on how the CIA helped film director Kathryn Bigelow and screenwriter Mark Boal prepare the first 20 minutes of the film Zero Dark Thirty.
The motion was filed in the summer of 2013 and, based on CIA classifications at the time, defense lawyers had to seal up part of it in a secret annex outside Washington D.C.
Baluchi, 37, is the nephew of the accused mastermind, Mohammed. His attorneys argue that the spy agency and others may have given the filmmakers more information about their client’s capture and interrogation than prosecutors have provided them through case discovery.
The film portrays interrogators waterboarding, stripping naked and stringing up on a rope a man named "Ammar" — who is described as the nephew of the 9/11 mastermind who helped finance the Sept. 11 hijackers. The Senate report doesn’t specifically say Baluchi was waterboarded during the three to four days in May 2003 when agents subjected him to "enhanced interrogation techniques" after his capture and interrogations by Pakistani authorities.
Pohl and the defense lawyers are at Guantánamo for a hearing Monday that is unlikely to tackle the declassification question because the main prosecution team will not be in court.
Instead, a Justice Department lawyer, Fernando Campoamor-Sanchez, will represent the government as a special trial counsel on the question of whether an FBI investigation compromised the defense team of another alleged 9/11 plot deputy, Ramzi bin al Shibh, 42.
FBI agents secretly questioned a security official on Bin al Shibh’s team, then had him sign a non-disclosure agreement in what his lawyers argue may have undermined their ability to defend him at trial.
Also expected in court Monday is Air Force Lt. Col. Julie Pitvorec, an attorney assigned as Bin al Shibh’s independent counsel to investigate the possible conflict of interest and advise him on his options.
Campoamor-Sanchez has argued there is non conflict-of-interest because the FBI investigation was closed. Some of the 9/11 defense lawyers argue they need to know what the FBI was investigating, and what the bureau learned, to decide what has been compromised in trial preparation.