Guantánamo Attorneys Urge Panetta To Preserve CIA Black Site Evidence
CONTACT: (212) 549-2666; media@aclu.org
NEW YORK – 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
mistreatment.
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: www.aclu.org/safefree/detention/39348res20090413.html
April 13, 2009
Leon E. Panetta
Director, Central Intelligence Agency
Central Intelligence Agency
Washington, DC 20505
RE: REQUEST TO PRESERVE CIA DETENTION FACILITIES USED TO DETAIN HIGH-VALUE
DETAINEES—A.K.A. "BLACK SITES"
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.
//s//
STEPHEN C. REYES
Lieutenant Commander
JAGC, USN
CHRISTOPHER CAZARES
Captain, USAF
Military Defense Counsel
NANCY HOLLANDER
Freedman Boyd Hollander Goldberg & Ives P.A.
20
First Plaza, Suite 700
Albuquerque, NM 87102
THERESA DUNCAN
Freedman Boyd Hollander Goldberg & Ives P.A.
20
First Plaza, Suite 700
Albuquerque, NM 87102
RICHARD KAMMEN
Gilroy, Kammen
One Indiana Square, #150
Indianapolis, IN 46204
Civilian Defense Counsel
Cc:
John Rizzo, CIA General Counsel (Acting)
Central Intelligence
Agency
Washington, DC 20505
Eric Holder, Attorney General
United States Department of Justice
Office of the Attorney General
950 Pennsylvania Avenue
Washington,
D.C. 20530
The White House
ATTN: Greg Craig, Esq., White House Counsel
Office of
White House Counsel
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500