Archive FOIA Cable Shows
Guantanamo Prosecutors Misleading Defense


Published: Nov 11, 2019


Edited by Lauren Harper


For more information, contact:

202-994-7000 or nsarchiv@gwu.edu


Judge Rules Against Government, Citing
Archive Document from Haspel Case



Gina
Haspel CIA Torture Cables’ Dates and Times Declassified


October 18, 2018


Gina
Haspel CIA Torture Cables Declassified


August 10, 2018


National
Security Archive Sues CIA for Gina Haspel Torture Cables


April 27, 2018


Gina
Haspel’s CIA Torture File


April 26, 2018


In
the News


Judge Rules Prosecutors Misrepresented Evidence From C.I.A.
Sites


 


The New York Times


Nov
8, 2019


Washington,
D.C., November 11, 2019 –
A military judge presiding over the Guantanamo trial of alleged USS Cole bomber
Abd al Rahim al-Nashiri cited a cable released to the National Security Archive
as evidence that the system for handling classified CIA evidence at the
detention camp’s national security trials is “flawed and unfair to the
defense.” The current system allows prosecutors, working with members of the
intelligence community, to decide what portions of evidence the defense needs
for trial. Prosecutors, as Carol Rosenberg reports
for the New York Times
, “then redact portions of reports from the C.I.A.
black sites or write summaries to substitute for the actual evidence.”

To reach his determination, Judge Col. Lanny
J. Acosta Jr. compared a December 1, 2002, cable that was released to the
Archive last year in response to a FOIA lawsuit to a version of the same cable
prosecutors provided al-Nashiri’s defense attorneys. Judge Acosta found “the
comparison undermines any contention the redactions are narrowly tailored to a
legitimate need to protect national security.”


The cable that was released
to the Archive
, which was authored under current CIA director Gina Haspel’s
command, describes Day 17 of al-Nashiri’s torture session at a black site
prison in Thailand. It states “HVTI [redacted, CIA contract
psychologist James Mitchell] and linguist [redacted] strode, catlike, into
the well-lit confines of the cell at 0902 hrs [redacted], deftly removed the
subject’s black hood with a swipe, paused, and in a deep, measured voice said
that subject – having ‘calmed down’ after his (staged) run-in with his hulking,
heavily muscled guards the previous day – should reveal what subject had done
to vex his guards to the point of rage.” The cable provided to the defense
was more redacted, and even omitted the word “catlike”, prompting Acosta to
rule that some of the deletions made in the cables provided to the defense
“could fairly be characterized as self-serving and calculated to avoid
embarrassment.”


The Archive filed its FOIA request for the
Haspel cable cited by Judge Acosta on April 16, 2018, after she was nominated
by President Trump to be CIA director. Despite the clear public interest in the
documents, the CIA denied the Archive’s request for expedited processing, and
the Archive went to court on April 27. The U.S. Senate confirmed Haspel as CIA
director on May 17 (by a vote of 54-45) on the basis of a record amassed almost
exclusively in closed hearings, with no declassification or public release of
information even remotely approaching that of previous CIA nominees.


David Sobel, FOIA expert and former
Archive counsel, drafted and filed the initial Archive complaint in federal
court; and the Archive’s pro
bono
 counsel Peter Karanjia and Lisa Zycherman of the law firm
Davis Wright Tremaine took on the task of negotiating with the U.S. Attorney’s
office over release of the documents.

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